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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LffiRARY 


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«v 


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by 

WcddEgton 


A  BOOK 


OP  THE 


LAWS  OF  WASHINGTON 


RELATING  TO 


NOTARIES  PUBLIC. 

A  COLLECTION  OF  THE  STATUTES  AND  CASES  GOVERNING  NOTARIES 
PUBLIC  AND  COMMISSIONERS  OF  DEEDS  AS  PUBLIC  OFFICERS, 
TOGETHER   WITH   A    MANUAL    APPLYING    WASHINGTON 
LAWS,  WRia^lEN  AND  UN,W5Il'TEl?r,;1^0.Tn;E^:^3il- 
CUTION  OF  OATflS,  AJBTIDaSTITS,  ACKNOWLEbO-  '  • 
ME^fTS,;  DEOPOSI^^Nq,    P^P^^^S.- -^JX  \  / 
INSIiiUMENTS      IN  '  C'dNNEC-  ''    '    * 
TION    WITH    INSURANCE. 
WITH  FORMS. 


BY 


JOSEPH  OSMUN  SKINNER, 

III  ' 

Of  the  Seattle  Bar. 


SAN  FRANCISCO: 

BANCROFT-WHITNEY  COMPANY. 
1911. 


Copyright,  1911. 

BY 

JOSEPH  OSMUN  SKINNER. 


5/^35  2 

nil 


rv 


The  Pilmer  Beothees  Electeottpe  Company, 

Ttpoqeaphees  and  Stereottpees. 

San  Feancisco. 


90623tttt^,^ 


PEEFACE. 


^  This  book  was  written  for  notaries  public.  It  is  an  attempt 
to  gather  in  one  book  all  the  law  which  it  is  necessary  for  a 
notary  to  apply  in  order  to  exercise  his  powers  in  a  legal 
manner  and  in  good  form.  It  is  a  handbook  for  the  notary, 
not  an  encyclopedia  for  the  lawyer.  It  is  a  book  to  be  read 
by  the  notary,  to  be  consulted  when  he  wishes  to  know  whether 
under  certain  circumstances  he  can  administer  an  oath,  or  take 
an  affidavit  or  acknowledgment.  It  is  a  book  to  guide  him  in 
taking  depositions  or  protesting  paper;  but  it  is  not  a  book 
for  a  lawyer  to  consult  in  preparing  a  case  for  trial  or  in 
writing  a  brief.  It  would  be  impossible  to  put  on  these  few 
pages  all  the  law  on  the  subjects  treated  herein  which  an 
attorney  might  want  on  a  trial.  It  is  merely  an  attempt  to 
collect  from  many  books  the  law  which  the  notary  has  not 
access  to,  but  which,  sooner  or  later,  he  will  be  obliged  to 
know  in  exercising  his  functions  as  a  notary. 

Added  thereto  are  two  chapters  not  usually  found  in  works 
on  notaries.  The  first,  "Banks  and  Notaries,"  is  a  chapter 
on  the  relations  of  a  bank  and  its  notary  to  the  owners  of 
negotiable  paper  forwarded  for  collection.  It  is  an  exposition 
of  the  law  on  a  subject  often  passed  over  with  little  or  no 
attention  by  reason  of  lack  of  knowledge  as  to  its  importance. 
It  should  be  of  special  interest  to  forwarding  and  collecting 
banks. 

The  second,  "Notaries  and  Insurance,"  is  a  chapter  setting 
forth  the  law  on  the  very  important  role  which  a  notary  at 
times  plays  in  the  adjustment  of  a  fire  loss.  It  will  be  of 
interest  to  all  insurance  agents,  and  of  value  to  notaries 
called  upon  to  act  for  the  companies.  The  law  was  collected 
from  many  books  which  the  insurance  agent  or  notary  would 
be  compelled  to  spend  much  time  in  consulting. 

(iii). 


IV  PREFACE. 

As  commissioners  of  deeds  are  officers  of  Washington  living 
in  other  states,  and,  in  almost  all  cases,  without  access  to  books 
on  Washington  law,  it  is  hoped  this  handbook  will  be  of  even 
greater  value  to  them  than  to  notaries  here  at  home. 

The  section  on  the  steps  required  for  appointment  as  notary 
was  supervised  by  the  Hon.  I.  M.  Howell,  Secretary  of  State, 
for  which  I  wish  to  thank  him. 

J.  0.  S. 

304  Central  Building, 

Seattle,  Washington. 


TABLE  OF  CONTENTS. 

CHAPTER  I. 
History  of  the  Notary  Public 1 

CHAPTER  II. 
«      (Totarial  Laws  of  the  Territory  and  State  of  Washington 16 

CHAPTER  III. 
The  Notary  Public:  Appointment,  etc 35 

CHAPTER  IV. 
The  Notary  Public:  Functions  and  Powers 57 

CHAPTER  V. 
The  Notary  Public:  Disqualifications,  Duties,  etc 87 

CHAPTER  VI. 
Oaths 108 

CHAPTER  VII. 
Affidarits 121 

CHAPTER  VIII. 
Acknowledgments 146 

CHAPTER  IX. 
Depositions  174 

CHAPTER  X. 
Protests 207 

CHAPTER  XI. 
Banks  and  Notaries 293 

CHAPTER  XII. 
Notaries  and  Insurance   296 

(V) 


VI  TABLE  OP   CONTENTS. 

CHAPTER  XIII. 
Commissioners  of  Deeds  ' 304 

CHAPTER  XIV. 
Waifl 307 

CHAPTER  XV. 
Definitions 310 


TABLE  OF  CASES. 


[References  are  to  Pages.] 

Abom  ▼.  Bosworth 218 

Aetna  Ins.  Co.  v.  Miers 301 

Agricultural  Bank  v.  Com.  Bank 294 

Agricultural  Ins.  Co.  r.  Bemiller 301 

Alabama  Nat.  Bank  t.  Chattanooga  Door  etc.  Co 10 

Albany  Co.  Sav.  Bank  v.  McCarty 149 

Alf ord  T.  McCormac 130,  135 

Allen  V.  Merchants'  Bank 293,  295 

Allen  V.   Taylor 132 

American  Casualty  Ins.  etc.  Co.  v.  Fyler 41 

American  Cent.  Ins.  Co.  r.  Bothchild 301 

Anderson  v.  Drake    228 

Anderson  v.  Wallace  Lumber  &  Mfg.  Co 148 

Anonymous   (Ld.  Baym.). 239 

Ansley  v.  Green   133 

Armstrong,  In  re 222 

Armstrong  v.  Austin  131 

Armstrong  v.  Burrows   200 

Armstrong  v.  Combs   88 

Arnold  v.   Dresser    228 

Arnold  v.    Nye 126 

Ashcraft  v.  Chapman   38,  39 

Atchison  v.  Bartholow   122 

Atwell  V.  Grant   225 

Atwell  V.  Lynch    200 

Ayrault  v.  Pacific  Bank 230,  293,  295 

Bac6n  v.  Bacon    200 

Bacon  v.  Magee   121 

Bailey  v.  Dozier 234 

Baker-Boyer  Nat.  Bank  v.  Hughson 148 

Baldwin  v.  State  Bank 294 

Ballard  v.  Perry 200 

Bank  v.   White 229 

Bank  of  Lindsborg  v.   Ober    293,  295 

Bank  of  Mobile  v.  Marston   253 

Bantley  v.  Finney 135 

Barhyat  v.  Alexander  128 

Bark  Merrimac,   The 112 

(vii) 


Vm  TABLE  OF  CASES. 

[References  are  to  Pages.] 

Barnard  v.  Darling  128 

Barnard  v.  Schuler 149,  154 

Barnet  v.   Smith 222 

Barr  t.  Marsh 244 

Bartels  v.  People 168,  169 

Bayonne  Knife  Co.  v.  Umbenliauer 10 

Beach  v.  Workman   199 

Bean  v.  Quimby  89 

Beattie  v.  National  Bank 133 

Bechtell  v.  Miners'  Bank   225 

Beebe  v.  Morrell    125 

Bell  V.  Chicago  First  Nat.  Bank 226 

Bell  V.  State   10 

Bellemire  v.  United  States  Bank 294 

Benedict  v.  Hall  82,  84 

Bennett  v.  Benson    128 

Bennett  v.  Gray  123 

Bennington  Bank  v.  Raymond    217 

Berkery  v.  Wayne  Circuit  Judge  83 

Bernier   r.    Becker    106 

Bettman  v.  Warwick    38 

Bidewell  v.  Sullivan   154 

Biencourt  v.  Parker 43,  106,  197 

Bigelow  V.  Kellar   228 

Billgerry  v.  Branch  246 

Billings,  In  re 247 

Bird  V.  Bank 295 

Bird  V.  Halsy  175 

Bishop  V.  McQuerry    122 

Blair  v.  West  Point  Mfg.  Co 127,  128 

Block  V.  Wilkerson  222 

Blocker  v.  Burness   110 

Bloomingdale  v.  Chittenden    131 

Bolster,  In  the  Matter  of  the  Petition  of 85,  191,  195 

Booth  V.   Cook    10 

Borders  v.  Barber 182 

Bours  V.  Zachariah   81 

Bow  V.  People    113 

Bowen  v.  Mulford  133 

Bowen  v.   Stilwell    37 

Bowling  V.  Arthur 253,  294 

Boyd  V.  State   ^ 134 

Brackett  v.  Nikirk 179 

Brailsford  v.  Williams 244 

Breitley  v.  Chester   155 

Brighton  Bank  v.  Philbrick 247 


TABLE  OP  CASES.  IX 

[References  are  to  Pages.] 

Britton  v.  Niccolls 38,  294 

Brooks  V.  Blaney   228 

Brooks  V.  Brooks   182 

Brooks  V.  Hunt   127,  128 

Brooks  V.    Snead    122 

Brower  v.  Wooten   244 

Brown  v.  Hull 230 

Brown  v.  State 8,  43 

Browne  v.  Dolan   169 

Bryant  v.  Ingraham   89 

Bryden  v.  Taylor  102 

Building  etc.  Association  v.  Sohn 43 

Bullene  v.  Garrison 47,  106 

BuUer  v.  Crips 68,  209 

Burk  V.   Shreve    235 

Burlington  First  Nat.  Bank  v.  Hatch 220 

Burnett  v.  Amer.  Ins.  Co 300 

Burns  v.  Doyle  128 

Burton  v.  Souter   209 

Burtt  V.  Pyle 197 

Butler,  In  re 197 

Bynum  v.  Apperson 246 

Byrd  r.  Cochran 127 

Cahall  V.  Citizens'  Mut.  Bldg.  Assn 168 

Call  V.  Perkins 200 

Call  V.  Pike 89 

Calliaud  v.  Vaughan 175 

Cameron  v.  Culkins   169 

Campbell  v.  Hough   150 

Cantwell  v.  State    124 

Carlisle  v.  Carlisle  168 

Carlos   V.  Fancourt    209 

Carlyle  v.  Plumer 179 

Carroll  v.  State 2,  7,  8,  10 

Carter  v.  Ewing 82,  197 

Carter  v.  Union  Bank   230 

Cary  v.  State    106 

Case  V.  Burt   220 

Cayon  v.  Dwelling-house  Ins.  Co 301 

Cayuga  County  Bank  v.  Hunt 235 

Chandler  v.  Hanna    82 

Chanoine  v.  Fowler   244 

Chaters   v.  Bell    234 

Chatham  Bank  v.  Allison  230 


Z  TABLE  OP  CASES. 

[References  are  to  Pages.] 

Chattanooga  Third  Nat.  Bank  v.  Smith .•      9 

Cheadle  v.  Eiddle   126 

Cheek  v.  James   123 

Chicot  V.  Lequesne 59 

Choquette  v.  McDonald  38 

Citizens'  Bank  v.  Pugh 249,  294 

Claflin  V.   Chicago 133 

Clement  v.  Bullens    135 

Clerke  v.  Martin  68,  209 

Cleveland   v.   Stanley 135 

Clinton  v.  State   108 

Coddington  v.  Davis   230 

Cole  T.  Sherard 59 

Coleman  v.  Colgate  206 

Columbia  Bank  v.  Lawrence 249 

Columbian  Ins.  Co.  v.  Lawrence 300 

Colvin  V.  People  118 

Commercial  Bank  v.  Barksdale 232 

Commercial  Bank  v.  Varnum 105,  225,  232,  253 

Commonwealth  v.  Buzzell   112 

Commonwealth  v.  Haines    169 

Commonwealth  v.  Johnson    149 

Commonwealth  v.   Pyle    9 

Commonwealth  v.  Shindle  43 

ConoUy  v.  Eiley  84 

Cook  V.  Pitman    168 

Cook  V.  Staats  127,  128 

Cookendorf er  v.  Preston   233 

Coppock  V.  Smith  131 

Corpenny  v.   Sedalia 124 

Cosner  v.  Smith   124 

Cox  V.  Central  Vermont  E.  Co 290 

Cox  v!  New  York  Nat.  Bank 217 

Cox  V.  Stern   121 

Crenshaw  v.  McKiernan   225,  233 

Crenshaw  v,  Taylor 131 

Cribbs  v.  Adams  105,  232 

Cross  V.   Barnett 118 

Crosthwait  v.  Pitts   168 

Crowley  v.  Barry  53 

Curry  v.  Mobile  Bank   235 

Curtis  V.  Marrs 133 

Cutler  V.  Maker  89 

Dail  V.  Moore   88 

Daoft  y.  Sawyer 218 


TABLE  OP  CASES.  XI 

[Refersnces  are  to  Pages.]     ». 

Daniels  r.  Equitable  Fire  Ins.  Co 301 

Darst  V.  Gale   88 

Davey  v.  Jones v 293 

Davidson  v.  State   106 

Davies   v.   Byrne    217 

Davis,  In   re    58 

Davis  V.  Beazley   88 

Davis  V.  Miller  68,  209 

Davis  V.  State 114 

Decatur  Branch  Bank  v.  Pierce 247 

Dennistown  v.  Stewart   233,  234 

Detroit  v.  Jackson    150 

Dewey  v.  Bowers 229 

De  Wolfskin  v.  Smith   148 

Doane  v.  Glenn 133 

Dodd   v.  Northrop 89 

Dolliver  v.  St.  Joseph  F.  &  M.  Ins.  Co 300,  302 

Donaldson  v.  Winningham 184,  186,  191 

Donegan  v.  Wood 225,  232,  248 

Doty   V.    Boyd    124 

Douglass  V.   State    10 

Downes  v.  Church   220 

Dudley  v.  McCord  121 

Duggan  V.  Washington  Land  and  Logging  Co 82,  84 

Dumont  v.  McCracken 179,  197 

Dunham  v.  Eappleyea    126 

Dunlap's  Case    9 

Dunlap  V.  Clay  124 

Dunn  V.  Adams   209 

Durden  v.  Smith   218 

Dye  V.  Bailey   175 

Dykman  v.  Northridge  90,  232 

Earle  Trust,  In  re 58 

Eason  v.  Isbell 90,  232 

Edwards  v.  Morris 229 

Egan  V.  Merchants'  Fire  Assn 301 

Elberson  v.  Richards    132 

Ellis  V.  Commercial  Bank  103 

Ellis  v.  Spaulding   181 

Emmerling  v.  Graham    168 

Enterprise  Transit  Co.  v.  Sheedy  168 

Esby  V.   Cincinnati   Bank 222 

Euberweg  v.  La  Compagnie  Gen.  Trans 201 

Ex  parte  Fisk    180 


XU  TABLE  OP  CASES. 

[References  are  to  Pages.] 

Ex  parte  La  Farge   126 

Ex  parte  Miller    180 

Ex  parte  Wackerbath  239 

Falkenberg  v.  Clark   290 

Fall  River  Union  Bank  v.  Willard 220 

Farnsworth  v.  Mullen  228 

Felrath  ads.  Fire  Ins.  Co 300 

Figge  V.  Bowlen    82 

Fire  Ins.  Co.  v    Felrath  " 300 

First  Nat.  Bank  v.  German  Bank  of  Carroll  Co 294 

Fish  V.  Jackman   249 

Fisher  v.  Beckwith 220 

Fisher  v.  Kutztown  Sav.  Bank 9 

Fisk,  Ex  parte 180 

Fleming  v.  McClure 247 

Flemming  v.  Richardson   52 

Flournoy  v.  Jeffersonville   41 

Floyd  V.  Rice 89 

Fogarty  v.  Finley 10,  92,  93,  168,  169 

Ford  V.  Cheever  200 

Fortenheim  v.  Claflin 123,  132 

Foster,  In  re 177 

Frazier  v.  New  Orleans  Gas  Light  Co 294 

Freas  v.  Jones    129,  135 

Freeman  v.  Hawkins    133 

French  v.  Gray 147 

Frye  v.  Barker  175 

Fuller  V.  Hodgdon  176 

Gaddis  v.  Durashy   122 

Gage  V.  Dubuque  etc.  B.  E.  Co 92 

Gale  V.  Kemper    225 

Gale  V.  Tappan  217 

Gale  V.   Walsh    234 

Gallego,  The  >, 101,  102 

Gallioplis  First  Nat.  Bank  v,  Butler 294 

Gardner  v.  McClure  132 

Garrard  v.  Hitsman  122,  135 

Garrison  v.  People  133 

Gates  V.  Beecher   218 

Gates  V.  Brown  10,  119,  137,  167 

Gatty  V.  Field   133 

Gawtry  v.  Doane  105,  224 

George  v.  Nichols   184 


TABLE  OP  CASES.  Xlii 

[References  are  to  Pages.] 

Gerhardt  ▼.  Boatman'8  Sav.  Inst < 295 

German-American  Ins.  Co.  v.  Etherton 301 

German-American  Ins.  Co.  v.  Norris 301 

Gervais  v.  McCarthy 38 

Gharst  v.  St.  Louis  Transit  Co 2,  36 

Gibson  y,  Norway  Sav,  Bank 88 

Gilchrist   v.    Donnell 248 

Gill  V.  Caldwell    112 

Gill  V.  Ward   121 

Gilleland  v.  Drake    107 

Glanton  v.  Griggs 89 

Glaser  v.  Bounds   227 

Goldstein    v.    Wbelan '. 125 

Goodloe  V.  Godley  247 

Goodwin  v.    Davenport 227 

Goodwin  v.   Roberts    209 

Goree  v.   Wadsworth    81 

Gould  V.  Howe   147 

Governor  v.  Gordon    38 

Granite  Bank  v.  Ayers 228 

Grant  v.  Spencer   243 

Great  West.  Ins.  Co.  v.  Staaden 300 

Green   v.   Abraham    87 

Greene  v.  Tally 82 

Greenleaf  Johnson  Lum.  Co.  v.  Leonard 149 

Griffin  v.  Catlin   167 

Griffin  v.  Goff   227 

Griffith  V.  Ventress  168 

Grove  v.  Campbell  122 

Gunn  V.  Haworth 132 

Haight  V.   Turner    126 

Hall  V.  Lay  179 

Halleran  v.  Field  200 

Halliday  v.  Martinet   252 

Hamilton  v.  Pitcher  106 

Hanauer  v.  Anderson  246 

Hanson  v.  Cochran 135,  168 

Harbour-Pitt  Shoe  Co.  v.  Dixon 9 

Hargadine  v.  Van  Horn 131 

Harmon  v.  Magee   149 

Harper  v.  State   10 

Harris  v.  Barber   84 

Harris  v.  Burton   56 

Harris  v.  Heberton  122 


XIV  TABLE  OF  CASES. 

[Beferonces  are  to  Pages.] 

Harris  t.  Lester    122 

Hart  V.  Smith 217 

Hastings   v.   DoUarhide. . , 151 

Hathaway  v.  Scott   130 

Hattan  v.  Holmes   169 

Havemeyer  v.  Dahn   88 

Hawkins  v.  Gibson   122 

Hawkins  v.  State   126 

Hays  T.  Loomis  122 

Heath,  In  re   123 

Heidt  V.  Minor 9,  93,  168 

Hellman  v.  Wright  200 

Henderson  v.  Smith  169 

Hendricks  v.  Craig   181 

Herbert  t.  Servin   247 

Herkimer  County  Bank  v.  Cox 232 

Hill  V.  McBurney  Oil  Co 126 

HiU  V.  Norris   2,  102 

HUl  V.  Varrell  247 

Hinsdale  v.  Miles   228 

Hitchcock  V.  Bank  of  Suspension  Bridge 293 

Hobart  v.  Jones 186,  205 

HoUopeter,  In  re    152 

Horbach  v,  Tyrrell   87 

Horseman  v.  Todhunter  200 

House  V.  Adams  246 

Hubby  T.  Harris   1£6 

Hudson  V.  State  Bank  233 

Hughes  V.  Long  106 

Hughes  V.  McDill   103 

Hunter  t.  Bryan   150 

Hutcheon  v.  Mannington   7,     59 

Hyde  v.  Adams  122 

Hyde  v.  Planters'  Bank 253,  294 

Infanta,  The    190 

Irvin  V.  Maury  209 

Jackson  v.  Tatebo    155 

Jagger  v.  Nat.  G.  A.  Bank 243,  244 

Jennings   v.    Menaugh    177 

Jeune  v.  Ward 222 

Johnson  t.  Irwin 15S 

Johnson  v.  McGehee  84 

Johnson  t.  Perry 199 

Johnson  t.  Pheniz  Ins.  Co 300 


TABLE  OP  CASES.  XV 

[Befersnces  are  to  Pages.] 

Johnson  v.  Tanner  126 

Jones  V.  Fales   226 

Jones  V.  Howard  Ins.  Co 300 

Joost  V.  Craig   154 

Jordan  v.  Corey 168 

Jordan  v.  Hazard  199 

Jordan  v.  Wheeler   227 

Keefer  v.  Mason  82,  84,  122 

Keene  Guaranty  Savings  Bank  v.  Lawrence 40,  90,  149 

Kehoe  v.   Bounds    124 

Kellogg  V.  Pacific  Box  Factory 235 

Kelly  V.  Sun  Fire  Office  301 

Keyes  v.  Fernstermacher 227 

King  V.  Clark 133 

Kinnaird  v.  Saltoun 59 

Kinney  v.  Heald  126 

Kirby  v.  Gates 135 

Kirsey  v.  Bates  2,  5,  6,  7,     36 

Kleber  v.  Block 135 

Kley  V.  Geiger  157 

Klumpp  V.  Gardner 151 

Knickerbocker  Ice  Co.  v.  Gray   89 

Knight  V.  Emmons   181 

Knox  V.  Buhler   235 

Kreider  v.  Wisconsin  River  Paper  etc.  Co 180 

Kuehling  v.  Leberman  175 

Kuhland  v.  Sedgwick 92 

La  Farge,  Ex  parte   126 

Laflin  Powder  Co.  v.  Steytler 133 

Lamagdelaine  v.  Tremblay   89 

Lambert  v.  Ghiselin  247 

Lane  v.  Morse   128 

Lane  v.  St.  Paul  F,  &  M.  Ins.  Co. 300 

Lang  V.  Brailsf ord   231 

Lang  V.  Eagle  Fire  Ins.  Co 301 

Langert  v.  Boss  148 

Laurendeau  v.  De  Montlord  59 

Lawrence  v.  Miller   244 

Leadbetter  v.  Etna  Ins.  Co 300 

Lee  V.  Buf ord   225 

Lee  V.  Murphy 87 

Lef tley  v.  Mills  234 

Leftwich  v.  Bichmond   88 

Legg  V.  Vinal  228 


XVI  TABLE  OF  CASES. 

[Beferenees  are  to  Pages.] 

Lenox  v.  Leverett  246 

Leonhard  v.  Flood   87,  -88 

Leveille  v.  Kauntz    10 

Levy  V.  Drew  228 

Lewis  V.  Herrera  147 

Lienpo  t.  State   82 

Linck  V.  Litchfield    •. 89 

Lindenberger  v.  Beall    103 

Lindley  v.  Lindley   154 

Linton  v.  Nat.  L.  Ins.  Co 147 

Locke  v.  Huling    224 

Lockwood  V.  Crawford 227 

Loney  v.  Bailey  134 

Lutcher  v.  United  States 204 

Lutz  T.  Kinney   134 

Lynch  v.  Livingston  92 

Lynn  t.  Morse   131 

Lyons  v.  Van  Biper  154 

MacGreal  v.  Taylor   151 

Magoun  v.  "Walker   225 

Mahoney  v.  Dixon 93 

Mairet  v.  Marriner  122 

Mallory  v.  Kirwan   233 

Mangum  v.  Ball 229 

Manning  First  Nat.  Bank  v.  German  Bank 294 

Marr  v.  Wetzel   181 

Marston  v.  Forward 177 

Marston  v.  Mobile  Bank  253 

Matter,  In  the,  of  N,  W.  Bolster  .- 85,  191,  195 

Maury  v.  Van  Amum  126 

May  v.  Jones  294 

McAfee  v.  Doremus   101 

McAllister  v.  Clement   93 

McCain  v.   Bonner 124 

McCann  v.  Beach   197 

McChesney  v.  Chicago   89 

McClane  v.  Fitch 230 

McCord  Mercantile  Co.  v.  Glenn 127 

McCormack  v.  Largey  82,  197 

McCutchen  v.  Laggins  181 

McKeUar  v.  Peck    53,  168 

McLean  v.  Adams  89 

McLean  v.  Eoller   40,  86,     92 

McManuB  v.  West  Assurance  Co 303 

McNally  v.  Phenix  Ins.  Co 300 


TABLE  OP  CASES.  XVU 

[References  are  to  Pages.] 

Mead  v.  Engs 293 

Meadvill«  First  Nat.  Bank  v.  N.  Y.  Fourth  Nat.  Bank 217 

Merchants'  Express  C!o.  v.  Morton 57 

Merchants'  Ins.  Co.  v.  Gibbs   300 

Merritt  v.   Yates    153,  168 

Merzbach  v.  New  York   43 

Metcalf  V.  Preseott  122 

Meyer  v.   Beardsley    222 

Middlesborough  Water  Works  Co.  v.  Neal 150 

Midland  Steel  Co.  v.  Citizens'  Nat.  Bank 82,  197 

Miller,  Ex  parte   ISO 

Miller  v.   Butler    222 

Miller  v.  Munson 122 

Miller  v.  State 10 

Minton  v.  State  114 

Missouri  etc.  R.  Co.  v.  Johnson 114 

Mobile  Bank  v.  Marston 253 

Monnett  v.  Adams   42 

Monongahela  Bank  v.  Porter 232 

Monroe  Cattle  Co.  v.  Becker   132,  133 

Montelius  v.  Charles 227 

Montillet  v.  U.  S.  Bank 293 

Moore  v.   Thomas    147 

Moreland  v.  Citizens'  Bank   232 

Morrison  v.  Morrison   154 

Mt.  Pleasant  Bank  v.  McLeran  218 

Muilman  v.  D'Eguino   246 

Mundy  v.   Strong    2 

Murray  v.   Tulare  Irr.  Co '. 88 

Mutual  Ben.  Life  Ins.  Co.  v.  Eobinson 177 

Neal  V.  Gordon  i 122 

Neal  V,   Taylor    253 

Neese  v.  Farmers'  Ins.  Co 10 

Nelson  v.  Fortterall   225 

Nelson  v.  Killingley  First  Nat.  Bank 90,  232 

Nelson  v.  United  States  174,  176 

New  Jersey  Express  Co.  v.  Nichols 200 

Newman  v.  Newman   108,  112 

New  Orleans  v.  Bienvenu g 

Niblack  t.  Park  Nat.  Bank  225 

Nicholls  V.  Webb 68,  252 

Nicholson  v.  Gloucester  Charity  School  149 

Niraocks  v.  Woody  217 

Nixon  V.  Post   40,  90,  149 

Noble  V.  United  States   131^  135 


Xviii  TABLE  OF  CASES. 

[References  are  to  Pages.] 

Nolan  V.  Labatut   87 

Norman  v.  Horn   123,  131,  132 

Norris  v.  Despard  246 

Norria  v.  Graves  132,  133 

Norton  v.   Hauge    130 

Norton  v.   Knapp    222 

Norton  v.  Rose   68,  209 

Ocean  National  Bank  v.  Williams   105,  224,  232 

Ohio  Nat.  Bank  v.  Hopkins 2,  5,  6,  7,     38 

Old  Dominion  Bank  v,  McVeigh  243 

Omychund   v.   Barker    108,  112 

O'Niel  V,  Dickson  235 

Opinion  of  Justices  (Mass.)   2,  8,  9,  38,  52,  68,  101,  102 

Oregon  R.  &  N.  Co.  v.  Day 148 

Orr  V.  Lacy   52 

Osewalt  V.  Hartford  Fire  Ins.  Co 301 

Page  V.  Gilbert   235 

Palmer  v.   Whitney    247 

Parke  v.  Lowrie    253 

Parker  v.  State   114 

Parks  V.  State  125 

Parrott   v.   Kumpf    147 

Patterson  v.  Patterson   83,  197 

Patterson  v.  Portland  Smelting  Works   41 

Payne  v.  Danley   175 

Payne  v.  Patrick  244 

Pearce  v.  Langfit   248 

Peek  V.  People    - 89 

Penn  v.  Garvin   88 

People  y.  Bartles    41,  149,  168 

People  V.  Bernal  114 

People  V.  Butler    9,    93 

People  V.  Cady    128 

People  V.  Colby 168 

People  V.  Cole  168 

People  V.  Hynds   44 

People  V.  Rathbone   7,     39 

People    V.    Schooley    154 

People  V.  Scott   44 

People  V.  Wadhams    38 

People's  Bank  v.   Aetna   Ins.   Co 300,  302 

Peoria  Marine  &  Fire  Ins.  Co.  v.  Whitehill  301 

Perry  v.  Commonwealth  108 

Perry  v.  Thompson 116 


TABLE  OP  CASES.  XIX 

[References  are  to  Pages.] 

Peterson  v.  Hubbard 222 

Peterson  v.  Little 133 

Pf  eiff er  v.  Cressy   150 

Pf eiffer  v.  Riehm   154 

Phelps  V.  City  of  Panama 179,  197,  201 

Phillips,    In    re    53 

Phillips  V.  Poin'dexter    102 

Pickard  v.  Bates 181 

Pierce  v.  Gate   227 

Pierce  v.  Indseth   5,       7 

Pinkham  v.   Cockell    84 

Plato  V.  Eeynolds   217 

Porter  t.  Judson    252 

Porter  y.  Thom   228 

Powers  V.  Powers  177 

Pridgen  v.  Cox   222 

Protection  Ins.  Co,  v.  Pherson   300 

Putnam  y.  Larimore 200 

Bagan  v.  Cargill   182 

Bahilly  v.  Lane  128 

Ealey  v.  Warrenton   132 

Eandall  v.  Baker    132 

Bausch  V.  Moore   123 

Be  Armstrong    222 

Be  Billings    247 

Be  Bolster    85 

Be  Butler    197 

Be  Davis     58 

Be  Earle  Trust   58 

Be  Foster   177 

Be  Heath    123 

Re  HoUopeter    152 

Be  Phillips   53 

Be  South  Beaver  Tp.  Eoad 115 

Be  Turner 82 

Bead  v.  Commonwealth  Bank 232,  233 

Beavis  v.  Cowell    92,  128 

Beed  v.  Newcomb  89 

Eeed  v.  Ukiah  Bank 147 

Regina  v.  Entrehman   108 

Respass  v.  Morton  180 

Reuscher  v.  Attorney  General   103 

Rex  V.  Emden   128 

Rex  v.  Morgan    108 

Bice  T.  Hogan 231 


XX  TABLE  OF  CASES. 

[Beferenees  are  to  Paces.) 

Richmond  ▼.  Voorhees  et  al 150,  151,  171 

Riddle  v.  Kellar    149 

Robb  V.  McDonald   121 

Robinson  t.  Mauldin 150 

Robinson  v.  Robinson  147 

Roehereau  v,  Jones  48 

Rochester  Bank  v.  Gray  52,  230 

Rogers  v.  Pell    148 

Rogers  v,  Stephens  234 

Rooker  v.  Rooker    200 

Rouniage  v.  Mechanics'  Fire  Ins,  Co 300 

Roy  and  Roy  v.  North  Pac.  R.  R.  Co 290 

Rupert's    Case    9 

Rupert  V.  Grant    179 

Russel  T.  Huntsville  R.  etc.  Co 10 

Sacrider  v.  Brown  105,  224,  232 

Schmidt  v.  Thomas 133 

Schmitt  V.  Drouet   10,  37,     93 

Scholes  V.  Ackerland  181 

School  Dist.  No.  2  v.  Lambert 41 

Schoolcraft  v,  Thompson 135 

Sessenwein   v.   Palmer    108 

Seymour  v.  Bailey  126 

Shattuck  V.  Bascom   116 

Shattuck  V.  Myers ; 123 

Shaw  V.  Merchants'  Nat.  Bank    289 

Sheegog  v.  James    225 

Shelton  v.  Berry   121,  122 

Shufelt  v.  Power   180 

Shute   V.    Bobbins    '. 218 

Sicard  v.   Davis    147 

Silver  v.  Kansas  City  etc.  R.  R.  Co 84 

Slaughter  v.  Cunningham   151 

Slingluflf  V.  Gainer  132 

Slocum  V.  McBrida   132 

Smart  v.  Howe   135 

Smith  y.  Castles  181 

Smith  V.  Collier   127 

Smith  V.  Home  Ins.  Co 3G1 

Smith   V.   Johnson    135 

Smith  v.  Meador   106 

Smith  v.  Richardson   128 

Smith  v.   Roach    234 

Smith  V.  Smith  89 

Smith  V.  Westerfield  1«1 


TABLE  OF  CASES.  XXI 

[References  are  to  Pages.] 

Snell  V.  Eckerson   128 

Sonfield  v.  Thompson  7 

Soule  V.   Chase    131 

South  Beaver  Turnpike  Eoad,  In  re  115 

Sparks   t.   Sparks    184 

Spear  v.  Pratt  222 

Spegail  V.   Perkins    102 

Spencer  v.  Bell    131 

Spies  V.  Newberry  230 

Spokane  &  Idaho  Lumber  Co.  v.  Ley 40,  86,  91,  92,  149 

Spokane  County  v.  Prescott  95 

Sprague  v.  Fletcher   230 

St.  Louis  K.  E.  Co.  v.  Fowler 124 

Stacy  T.  Dane  County  Bank  294 

Stacy  V.  Farnham  126 

Stainback  v.   State  Bank    246 

State  V.  Bailey 115 

State  V.  Burke  105 

State  V,  Central  Pac.  R.  Co 128 

State  T.  Cheetham  105 

State  V.  Chyo  Chiagk    108,  112 

State  V.  Clarke 43 

State  V.  Davidson  9 

State  V.  Dudley   133 

State  V.  Freeman 118 

State  V.  Gibbs   133 

State  V.  Gin  Pong   108,  112 

State  V.  Green   122 

State  V.  Headriek   121 

State  V.  Henning   122,  128 

State  V.  Hostetter ; 9 

State  V,  Hughes    133 

State  V.  Jackson   114 

State  V.  Jenkins 55 

State  V.  Laresche    101 

State  V.  Martin 133 

State  V.  McEanley 9 

State  V,  Meyer   168,  169 

State  V.  Richards    133 

State  V.  Ryland    154,  168 

State  V.  Scanlan   114 

State  V.  Sullivan    122 

State  T.  Theard   101 

State  V.  Thompson   93 

State  V.  Welch   118 

State  V.  Womack    40 


XXll  TABLE  OF  CASES. 

[Refersnces  are  to  Pages.] 

Steinhart  v.  Bank  229 

Stephens  v.  Williams   84 

Sterrick  v.  Pugsley   129 

Stetson  etc.  Mill  Co.  v.  McDonald  10,  137,  167 

Stevenson  v.  Brasher   168 

Stimpson  v.  Brooks 121,  122,  175,  176 

Stokes  V.  Acklen 7,  9 

Stollenwerck  v.   Thatcher    290 

Stone  V.  Miller 128 

Stone  V,  Sledge   168 

Stone  V.  Stillwell    182 

Stone  V.  Williamson   128 

Stork  V.  American  Surety  Co 10,  92 

Stott  V.   Harrison    253 

Strayer  v.  Wilson  182 

Strong  V.  United  States 148 

Sullivan  v.  Chambers   168 

Sullivan  v.  Platonia  First  Nat.  Bank  113 

Sullivan  v.   Treen    167 

Swan  v.   Hodges    225 

Swayze  v.  Britton  230 

Sydnor  v.  Palmer   182 

Tacoma  Grocery  Co.  v.  Draham  124,  136 

Taillif er  v.  Taillifer 10 

Taylor  v.  Noel  154 

Taylor  v.  State 124,  132 

Taylor  v.  United   States    148 

Tete's  Succession  10 

Teutonia  Loan  etc.  Co.  v.  Turrell 2,  4,  7,     82 

Tevis  v.  Randall  '.....'..  .9,  48,  93,  244,  253 

The  Bark  Mferrimac   112 

The  Gallego  101,  102 

The  Infanta   190 

Thompson  v.  Burhans   128 

Thompson  v.  State  Bank  293,  295 

Thorn  v.  Rice    249 

Tickner  v.  Roberts   230 

Tiernan  v.  Commercial  Bank   294 

Tillinghast  v.  Walton    89 

Townsend  v.  Auld    248 

Townsley  v.   Sumrall    217 

Trevor  v.  Colgate   83 

Tunno  v.  Lague 246 

Turner,    In   re 82 

Turner  v.   Israel 290 


TABLE  OF  CASES.  XXiil 

[References  are  to  Pages.] 

Turner  v.   Leech 246 

Turner  v,  Patterson  179 

Turner  v.  Sfaackman  180 

Union  Bank  v.  Morgan   22S 

Union  Bank  v.  Slidell    229 

United  States  v.  Barker 218 

United  States  v.  Bixby 9 

United  States  v.  Curtis 69 

United  States  v.  HaU    69 

United  States  v.   Mallard 131 

United  States  v.  Manion  69 

United  States  v.  McDermott   134 

United  States  v.  UphJ^m   132 

Utica  Bank  v.  Bender  247 

Vail  V.  Tillman  148 

Vance  v.  Depass   247 

Van  de  Casteele  v.  Cornwall 9,  48 

Vandewater  v.  Williamson  6,     7 

Van  Dorn  v.  Mengedoht   9 

Veach   v.   Bailiff    199 

Veal  V.  Perkerson  135 

Vinson  v,  Norfolk  etc.  R.  Co 125 

Wackerbath,  Ex  parte  239 

Wade  V.  Roberts   124 

Wakefield  v.  Ross  110 

Waldron  v.  St.  Paul 184 

Walker  v.  Phenix  Ins.  Co 300,  301 

Walker  v.  State  Bank 217 

AVallace  v.  Agry 218 

TValsh  V.  Blatchley 218,  220 

Walsh  V.  Dart   227 

Wamsley  v.  Rivers   235 

Wannock  v.  Macon  199 

Ward  V.  Allen  222 

Waring  v.  Betts    225 

Warren  v.  Oilman  244 

Warren  Bank  v.  Suffolk  Bank  294 

Washburn  v.  People  114 

Wasson  v.  Connor   88 

Watson  V.  Reissig  126 

Watt  V.  Bradley    126 

Watt  V.   Games    122 

"Watts  V.  Womack  131 


XXIV  TABLE  OP  CASES. 

[References  are  to  Pages.] 

Wentworth  t.  Clap  226 

Wert  V.  Krebaum  88 

West  V.  Woolfolk   126 

Westhafer  v.  Patterson   168 

Wheeler  v.  State  93,  244 

Wheeling  v.  Black 124 

Whieher  v.  Whicher 89 

Whipple  ▼.  Williams    126 

White  V,  Hess   126 

White  V.  Keith   230 

Whittier  v.  Graffam  227 

Will  V.  Lytle  Creek  Water  Co 123 

Williams  v.  Niagara  Fire  Ins.  Co 301 

Williams  v.  Parks   253,  294 

Wilson  V.  Kimmel  9,  42,  106 

Wilson   V.   Senier 247 

Wilson  V.  Shannon 133 

Winans  v.  Davis 247 

Windley  v.  Bradway   122 

Wixon  V.  Stephens 199 

Wolf  V.  Burgess   248 

Wolford  V.  Andrews  230 

Wood  V.  Blythe 128 

Wood  V.  St.  Paul  City  Rj.  Co 7,  8,  84 

Wood  River  Bank  v.  Omaha  Bank 230,  295 

Woodland  Bank  v.  Oberhaus 88,  149 

Woods  V.  State   122 

Wooley  V.  Lyon  230 

Worsham  v.  Goar    179,  181 

Wright  V.  Hartford  Ins.  Co - 302 

Wright  V.   Raddin 150 

Wright  V.    Waller 151 

Wynen  v.  Schappert  2*8 

Yarwood  v.  Happy  290 

Yeagley  v.  Webb  89 

Young  V.  Mackall  199 

Young  V.  Young  128 


LAWS  OF  WASHINGTON 

BELATINQ  TO 

NOTARIES    PUBLIC. 


CHAPTER  I. 

HISTOEY  OF  THE  NOTARY  PUBLIC. 

S  1.  The  Origin  of  tlie  Notary  Public:  Tabularius. 

§  2.  The  Notarius. 

§  3.  The  Notary  in  Western  Europe. 

§  4.  The  Notary  in  England. 

§  5.  The  Appointment  of  Notaries. 

§  6.  The  Notary  Public  in  International  Law. 

§  7.  Notaries  Public  in  the  United  States. 

§  8.  The  Notary  Public  in  the  Territory  and  State  of  Washington. 

§  1.    The  Origin  of  the  Notary  Public:  Tabularius. — In 

tracing  out  the  beginnings  of  the  notary^  of  to-day  one  is  led 
back  to  England,  thence  to  the  nations  of  Western  Europe 
and  from  there  on  back  to  the  Romans,  from  whom  we  bor- 
rowed, or  rather  inherited,  the  principles  of  all  our  law. 
We  not  only  find  that  it  was  the  Romans  who  originated  the 
idea  of  appointing  persons  as  ofiicers  of  the  government  to 
draw  up  legal  documents  and  to  certify  to  them,  but  also 
that  they  coined  the  original  of  our  word  "notary."  We 
learn  that  the  notary  public  of  modern  times  has  about  the 
same  powers  and  duties  as  the  tabularius  of  old  Rome ;  but 
that  he  goes  by  the  name  of  an  altogether  different  Roman 

1  The  plural  form   of  "Notary  able     as     "Use     is    the    law    of 

Public"  is  properly  "Notaries  Pub-  language." 

lie";  but  the  form  "Notary  Pub-  The  word  "Notary"  is  equiva- 
lics"  has  been  often  used,  and  it  lent  to  the  words  "Notary  Pub- 
might  be  said  to  be  an  open  ques-  lie":  Va.  Code  (1904),  §  5;  W. 
tion  whether  its  use  is  not  allow-  Va.  Code  (1906),  §  293. 

1  (1) 


2  LAW  FOR  NOT^VRIES  PUBLIC. 

officer,  the  notarius.-  How  old  the  notary  is,  it  is  impos- 
sible to  determine;  but  we  know  that  he  existed  in  Rome 
during  the  republic,^  and  was  then  known  as  tabularius. 
His  employment  consisted  in  the  drawing  up  of  legal  docu- 
ments. In  that  he  occupied  to  some  extent  the  position  that 
an  attorney  at  law  now  fills.*  In  the  canon  law  the  tabu- 
larius was  a  person  of  great  importance;  it  was  a  maxim 
of  that  law  that  his  evidence  was  worth  that  of  two  un- 
skilled witnesses.*^ 

§  2.  The  Notaiius. — While  the  modern  notary  gets  his 
name  from  the  old  Roman  notarius  he  is,  in  fact,  of  very 
little  relation  to  him.  The  notarius  was  originally  a  slave 
or  freedman  who  took  notes  of  judicial  proceedings  in  short- 
hand or  cipher,  particularly  one  who  took  notes  in  the 
Senate.  In  other  words  he  was  a  stenographer  of  modern 
times.  Later  on  he  became  the  secretary  of  some  public 
authority  and  we  can  imagine  it  was  no  great  change  for 
him  to  grow  into  a  public  official.  The  word. itself  has  not 
changed  in  appearance,  so  that  it  is  an  easy  matter  to  ac- 
cept the  explanations  of  the  historians.  Notarius  came  from 
nota,  meaning  a  mark  or  sign ;  a  notarius  was  one  who  made 
marks  or  signs.^ 

§  3.  The  Notary  in  Western  Europe. — The  duties  of  the 
tabularius  and  the  name  notarius  merged  at  some  time  in 

2  Bouv.  Law  Diet.  (Rawle's  Mass.  586,  23  N.  E.  850,  6  L.  R.  A. 
Rev.),  tit.  "Notary  Public";  17  842;  Brooke's  Notary,  6th  ed.,  1 
Ency.  Britannica,  tit.  "Notary  et  seq.;  2  Burn's  Ecc.  Law,  2; 
Public."  Colquhoun's     Kom.     Law,     §  86; 

3  The  republic  lasted  from  509  Teutonia  Loan  etc.  Co.  v.  Turrell, 
B.  C.  to  31  B.  C.  19  Ind.  App.  469,  65  Am.  St.  Rep. 

4  "The  office  of  attorney  did  not  419,  49  N.  E,  852;  Carroll  v. 
come  into  legal  existence  until  a  State,  58  Ala.  396,  400;  Ohio 
later  date,  under  the  statute  of  Nat.  Bank  v.  Hopkins,  8  App. 
Westminster  II  (1285)":  Mundy  Cas.  (D.  C.)  146,  152;  Gharst  v. 
V.  Strong,  52  N.  J.  Eq.  833,  31  St.  Louis  Transit  Co.,  115  Mo. 
Atl.  611.  App.  403,  408,  91  S.  W.  453. 

B  See  note  2;  Hill  v.  Norris,  2  4  5    Century   Diet.   &    Cye.,   tit. 

Ala.    640;    Kirksey    v.    Bates,    7  "Notary";  17  Ency.  Britannica,  tit. 

Port.    (Ala.)     529,    31    Am.  Dee.  "Notary." 
722;    Opinion    of     Justices,     150 


HISTORY  OP  THE  NOTARY  PUBLIC.  3 

the  history  of  the  nations  of  Western  Europe  long  before 
the  modern  notary  was  introduced  into  England  as  an  of- 
ficer with  about  the  same  powers  and  duties  he  now  has. 
fn  the  transformation  the  European  countries  left  the  notary 
with  more  power  than  he  now  has  in  England.  And  this 
is  still  true  in  France  where  the  importance  of  the  notary 
was  and  still  is  greater  than  anywhere  else.  He  is  not  only 
a  public  witness  for  everyone  who  wishes  his  testimony,  but 
he  is  also  the  great  witness  of  government.  He  makes  all 
contracts,  mortgages,  and  other  deeds  and  conveyances 
where  the  property  in  question  amounts  to  more  than  one 
hundred  and  fifty  francs.*  In  France  a  document  attested 
by  a  notary  is  said  to  be  "legalized,"  a  term  much  too  strong 
to  express  the  effect  of  such  attestation  in  England,  where 
the  notary  public,  in  spite  of  his  name,  is  not  recognized  as 
a  public  officer  to  such  a  degree  as  the  notary  in  other  coun- 
tries.2 

The  following  is  an  excerpt  from  an  article  on  the  "French 
Lawyer,"  written  for  "Law  Notes,"  November,  1910,  by 
Mr.  Charles  F.  Beach,  the  well-known  legal  author,  who  is 
now  in  the  practice  of  law  in  Paris: 

"The  notary  is  a  functionary  of  far  greater  importance 
than  with  us,  and,  especially  in  Paris  and  the  other  great 
cities  of  the  country,  is  in  a  way  the  elite  of  the  profession. 
He  also  usually  takes  the  degree  of  Licencie  en  droit  as  part 
of  his  qualification,  but  no  diploma  is  demanded  from  him. 
He  is  merely  required  to  have  preliminary  experience  in 
the  etude  of  a  notary,  and  to  pass  a  formal  examination 
prescribed  by  the  Ghambre  des  Notaires.  He  may  then  ac- 
quire an  etude  in  succession  to  a  deceased  or  retiring  notary. 
The  notaries  succeed  one  another  and  take  over  the  records 
of  the  office  they  acquire,  and  their  number  is  also  limited 
by  law.  It  is  necessary,  therefore,  in  order  to  become  a 
notary,  to  buy  the  business  of  a  retiring  member  of  that 
branch  of  the  profession,  and  to  be  accepted  by  the  Minister 
of  Justice.  Deeds  and  mortgages  of  real  estate,  marriage 
contracts  and  settlements,  wills,  articles  of  incorporation, 

1  One  hundred  and  fifty  francs  2  17       Ency.     Britannica,     tit. 

equals  about  twenty-nine  dollars.       "Notary  Public." 


4  LAW  FOB  NOTARIES  PUBLIC. 

and  many  sorts  of  the  more  formal  and  important  contracts 
must  be  drawn  and  attested  by  him.  In  these  and  certain 
other  respects  he  has  a  monopoly.  There  are  but  one  hun- 
dred and  twenty-two  notaries  in  Paris." 

§  4.  The  Notary  in  England. — The  office  of  notary  in 
England  is  a  very  ancient  one;  it  was  known  before  the 
Conquest  (1066  A.  D.),  and  is  mentioned  in  statute  law  as 
early  as  the  Statute  of  Provisors,  which  was  passed  in  1352 
A.  D.,  in  the  twenty-fifth  year  of  the  reign  of  Edv/ard  III.' 
But  we  know  that  even  before  we  find  a  notary  mentioned 
by  statute  law,  as  early  as  1300  A.  D.,  during  the  reign  of 
Edward  I,  notaries  were  clerks  for  the  chancellor.  The 
chancellor  was  then  the  head  of  what  has  since  developed 
into  our  court  of  chancery,  but  which  was  then  "a  great 
secretarial  bureau,  a  home  office,  a  foreign  office  and  a  min- 
istry of  justice."^  We  also  know  that  as  early  as  the  thir- 
teenth century  two  witnesses  with  the  tabularius  or  notary 
were  enough  for  a  bond.^  While  it  is  true  that  the  office 
of  notary  is  a  very  ancient  one  in  England,  we  miist  also  re- 
member that  in  the  early  days  that  Roman  institution,  the 

1  Teutonia  Loan  etc.  Co.  v.  there  were  numerous  clerks.  The 
Turrell,  19  Ind.  App.  469,  65  Am.  higkest  in  rank  among  them  we 
St.  Rep.  419,  49  N,  E.  852;  might  fairly  call  under  secre- 
Brooke'9  Notary,  6th  ed.,  10;  taries  of  state;  they  were  eccle- 
Statute  of  Provisors,  25  Edward  siastics  holding  deaneries  or 
m,  Stat.  4.  canonries;    they  were    sworn    of 

2  "In  the  reign  of  Edward  I  the  king's  council;  some  of  them 
(1272-1307)  in  England  our  were  doctores  utriusque  iuris; 
present  court  of  chancery  was  they  were  graduates,  they  were 
not  in  our  view  a  court  of  jus-  masters;  some  of  them,  as  nota- 
tice;  it  did  not  hear  and  deter-  ries  of  the  apostolic  See,  were 
mine  causes.  It  was  a  great  men  whose  authenticity  would 
secretarial  bureau,  a  home  oflSce,  be  admitted  all  the  world  over. 
a  foreign  oflSce  and  a  ministry  of  Edward  I  had  two  apostolic 
justice.  At  its  head  was  the  notaries  in  his  chancery,  John 
chancellor,  who,  when  there  was  Arthur  of  Caen  and  John  Busshe: 
no  longer  a  chief  justiciar  of  the  1  Stubb's  Const.  Hist.,  p.  381"; 
realm,  became  the  highest  in  rank  1  Poll,  and  Mait.  Hist,  of  Eng. 
of  the  king's  servants.     He  was  Law,  2d  ed.,  p.  193. 

the  king's  secretary  of  state  for  8  i    Poll,    and    Mait.    Hist,    of 

all     departments.       Under      him       Eng.  Law,  2d  ed.,  p.  218. 


HISTORY  OP  THE  NOTARY  PUBLIC.  5 

notarial  system,  never  took  deep  root.  The  English  kings 
did  not  assume  the  imperial  privilege  of  appointing  nota- 
ries; for  one  reason,  because  the  laws  did  not  require  that 
deeds  or  wills  or  other  instruments  in  common  use  should 
be  prepared  or  attested  by  professional  experts.  Now  and 
again  when  some  document  was  to  be  drawn  up  which  would 
demand  the  credence  of  foreigners,  a  papal  notary  would 
be  employed.*  With  the  development  of  the  commerce  of 
England  and  the  "law-merchant,"  however,  the  office  of 
notary  public  increased  in  importance  very  rapidly.  No- 
taries were  employed  to  protest  commercial  paper,  to  wit- 
ness certain  papers  under  the  maritime  law,*  and  were 
gradually  vested  with  the  powers  which  they  exercise  gen- 
lerally  to-day.^  The  English  not-ary  is  a  skilled  person  ap- 
pointed to  secure  evidence  as  to  the  attestation  of  important 
documents.  The  general  functions  of  a  notary  consist  in 
receiving  all  acts  and  contracts  which  must  or  are  wished 
to  be  clothed  with  an  authentic  form;  in  conferring  on  such 
documents  the  required  authenticity;  in  establishing  their 
date;  in  preserving  originals  or  minutes  of  them  which, 
when  prepared  in  the  style  and  with  the  seal  of  the  notary, 
obtain  the  name  of  "original  acts";  and  in  giving  authentic 
copies  of  such  acts.®  The  most  important  part  of  an  English 
notary's  duty  at  the  present  day  is  the  noting  and  protesting 
of  foreign  bills  of  exchange  in  case  of  nonacceptance  or 
nonpayment.'^ 

§  5.  The  Appointment  of  Notaries. — In  tracing  back  the 
different  ways  in  which  notaries  of  all  times  have  been  ap- 
pointed we  arrive  at  last  in  Rome  within  the  church  walls. 
The  first  notaries  were  appointed  by  the  popes  of  Rome  and 
acted  as  officials  in  ecclesiastical  courts,  in  addition  to  exer- 

4  See  note  3.     It  waa  a  papal  Hopkins,  8  App.  Cas.  (D.  C.)  146; 

notary  who  framed  a  most  mag-  Pierce  v.  Indseth,  106  U.  S.  546, 

nificent    record    of    the    suit  in  1  Sup.  Ct.    Eep.    418.,    27  L.  ed. 

which  the  crown  of  Scotland  was  254. 

at  stake.  «  Brooke   "On   the   Office   of   a 

B  14  New  International  Ency.,  Notary,"  c.  3. 

tit.  "Notary  Public";  Kirksey  v.  7  17     Ency.     Britannica,      tit. 

Bates,  7  Port.  (Ala.)  529,  31  Am.  "Notary  PubUc." 
Dec.    722;    Ohio    Nat.    Bank    v. 


6  LAW  FOR  NOTARIES  PUBLIC. 

cising  certain  secular  powers.^  The  popes  held  that  power 
of  appointment  for  centuries,  although  they  would  also,  dur- 
ing the  latter  part  of  the  period,  delegate  the  power  to  cer- 
tain rulers  under  certain  conditions.  We  know  that  as  early 
as  803  A.  D.  notaries  were  appointed  by  the  Frankish  kings, 
and  also  that  up  to  the  fifteenth  century  the  Roman  See  ap- 
pointed all  the  notaries  for  England.^ 

Some  time  before  1500  the  Roman  See  delegated  that  power 
to  the  Archbishop  of  Canterbury  and  after  the  Reformation 
(1534  A.  D.),  a  statute  was  enacted  confirming  the  right  in 
the  archbishop  as  a  high  prelate  in  the  English  church,* 
Later  on  these  appointments  were  considered  as  being  made 
by  the  Archbishop  of  Canterbury,  though  through  the  mas- 
ter of  the  faculties,  who  at  the  present  time  is  the  judge  of 
the  provincial  courts  of  Canterbury  and  York.  The  office  is 
nominally  an  ecclesiastical  one,  though  its  duties  are  mainly 
of  a  secular  character.* 

In  Scotland  before  the  reign  of  James  III  (1460-1488)  the 
notaries  were  appointed  by  the  pope  and  also  by  the  king 
through  one  of  his  church  officials.  In  the  year  1469  an  act 
was  passed  declaring  that  notaries  should  be  made  by  the 
king.  But  for  some  time  afterward  there  were  in  Scotland 
two  kinds  of  notaries,  clerical  and  legal.  In  the  year  1555, 
however,  an  act  was  passed  which  took  the  power  away 
from  every  notary,  "by  whatsoever  power  he  be  created," 
except  he  present  himself  before  the  lords  and  be  admitted 
by  them ;  and  in  1563  the  power  of  appointment  was  placed 
with  the  lords  of  session.  Since  then  the  court  of  session 
in  Scotland  has  exercised  full  and  exclusive  authority  on 
the  admission  of  notaries  in  all  legal  matters,  spiritual  and 
temporal.  In  Scotland  the  parish  clergyman  still  has  no- 
tarial powers  to  the  extent  of  executing  a  will — a  relic  of 
the  old  eccksiastical  position  of  notaries." 

1  14  New  International  Ency.,  2  Bouv.     Law     Diet.     (Rawle's 

ti*.     "Notary    Public";     Kirksey  Eev.),  tit.  "Notary  Public." 

V.  Bates,  7  Port.   (Ala.)    529,  31  »  25  Henry  Vin,  c.  21,  §  4. 

Am.   Dec.   722;    Ohio   Nat.   Bank  *  17      Ency.      Britannica,     tit. 

T.  Hopkins,  8  App.  Cas.   (D.  C.)  "Notary  Public." 

146;  Vandewater  v.    Williamson,  5  See      note      4.       Apostolical 

13  Phila.  (Pa.)  140.  notary:  An  official  charged  with 


HISTORY  OF  THE  NOTARY  PUBLIC. 


§  6.    The  Notary  Public  in  International  Law. — As  was 

said  before,  the  office  of  notary  public  is  of  ancient  origin,^ 
and  has  long  been  known  both  to  the  civil  and  common  law.^ 
It  exists  and  is  recognized  throughout  the  commercial  world 
and  has  been  said  to  be  "known  to  the  law  of  nations."^ 
The  court  in  an  Indiana  case,  Teutonia  Loan  etc.  Co.  v. 
Turrell,  said:  "All  acts  done  by  a  notary  public,  which  fall 
within  the  rules  of  the  law-merchant,  have  always  been 
respected  under  the  law  of  nations";*  and  in  Sonfield  v. 
Thompson,  an  Arkansas  case,  the  court  said  that  "notaries* 
acts  duly  authenticated  are  valid  everywhere,  and  prove 
themselves  by  comity  of  nations."^  In  an  English  case, 
Hutcheon  v.  Mannington,  the  court  said :  "  A  notary  public  by 
the  law  of  nations  has  credit  everywhere."^  In  Wood  v. 
St.  Paul  City  Ry.  Co.,  a  Minnesota  judge  said:  "A  public 
notary  is  considered,  not  merely  an  officer  of  the  country 
where  he  is  admitted  or  appointed,  but  as  a  kind  of  inter- 
national officer,  whose  official  acts,  performed  in  the  state 
for  which  he  is  appointed,  are  recognized  as  authoritative 


despatching  the  orders  of  the 
papal  See;  ecclesiastical  notary: 
in  the  early  church,  a  clerk  or 
secretary,  especially  a  shorthand 
writer,  employed  to  record  the 
proceedings  of  councils  and 
tribunals,  report  sermons,  take 
notes,  and  prepare  papers  for 
bishops  and  abbots:  5  Century 
Diet,  and  Cyc,  tit.  "Notary." 

1  See  §  1. 

2  29  Cyc.  Law  &  Proc,  p. 
10G9;  21  Am.  &  Eng.  Cyc.  of 
Law,  2d  ed.,  p.  555;  Kirksey  v. 
Bates,  7  Port.  (Ala.)  529,  31 
Am.  Dec.  722;  Ohio  Nat.  Bank  v. 
Hopkins,  8  App.  Oas.  (D.  C.) 
146;  Vandewater  v.  Williamson, 
13  Phila.  (Pa.)  140;  Stokes  v. 
Acklen  (Tenn.  Ch.  1898),  46  S. 
W.  316. 

3  29  Cyc.  Law  &  Proc,  p. 
1069;  21  Am.  &  Eng.  Ency.  of 
LaviT,  2d  ed.^  p.  555;  Bout.  Law 


Diet.  (Rawle's  Eev.),  tit.  "Notary 
Public." 

4  Teutonia  Loan  etc.  Co.  ▼. 
Turrell,  19  Ind.  App.  469,  65 
Am.  St.  Eep.  419,  49  N.  E.  852, 
853;  21  Am.  &  Eng.  Ency.  of  Law, 
2d  ed.,  p.  555;  Kirksey  v.  Bates, 
7  Port.  (Ala.)  529,  31  Am.  Dec. 
722;  Ohio  Nat.  Bank  v.  Hop- 
kins, 8  App.  Oas.  (D.  C.)  146; 
People  V.  Kathbone  (Sup.  Ct. 
Spec.  T.),  11  Misc.  Eep.  98,  32 
N.  Y.  Supp.  108.  See,  also. 
Pierce  v.  Indseth,  106  U.  S.  546, 
1  Sup.  Ot.  Eep.  418,  27  L.  ed. 
254;  Carroll  v.  State,  58  Ala. 
396;  29  Cyc.  Law  &  Proc,  p. 
1069;   The  Gallego,  30  Fed.  271. 

5  Sonfield  v.  Thompson,  ,42 
Ark.  46,  50,  48  Am.  Eep.  49. 

6  Hutcheon  v.  Mannington,  6 
Vea.  Jr.  823,  824,  2  Eev.  Eep. 
115,  31  Eng.  Eeprint,  1327. 


8  LAW  FOB  NOTARIES  PUBLIC. 

the  world  over."'^  Some  of  the  states  in  their  statutes  on 
notaries  recognize  this  phase  of  a  notary's  powers.  The 
New  York  statute  which  defines  their  powers  in  respect  to 
foreign  and  inland  bills,  drafts  and  notes  confers  upon  them 
the  further  authority  "to  exercise  such  other  powers  and 
duties  as  by  the  law  of  nations  and  according  to  commercial 
usage,  or  by  the  laws  of  any  other  state,  government  or  coun- 
try, may  be  performed  by  notaries  public." 

§  7.  Notaries  Public  in  the  United  States. — When  the 
Union  of  the  thirteen  colonies  was  formed,  nothing  was  said 
in  the  constitution  concerning  notaries  public  so  that  full 
power  over  such  officers  was  left  with  the  individual  states, 
[a]  It  is  to  the  states,  then,  that  we  must  look  for  the  laws 
affecting  the  notary  public.  We  find  in  most  of  the  states 
that  notaries  are  appointed  by  the  governor,^  with  or  with- 
out the  consent  of  the  senate  or  some  advisory  council; 
though  in  Rhode  Island  they  are  elected  annually  by  the 
general  assembly.  In  the  District  of  Columbia  they  are  ap- 
pointed by  the  President  of  the  United  States.^  By  statute 
certain  other  public  offices  frequently  include  that  of  notary, 
so  that  one  holding  the  same  is  ex  officio  a  notary.  As  a 
general  rule,  they  are  appointed  for  certain  counties,  though 
in  a  few  states,  as  in  Washington,  they  may  exercise  their 
privileges  anywhere  in  the  state.  In  most  states  the  ap- 
pointment is  for  a  period  of  four  or  five  years,  but  in  a  few 
the  appointment  holds  good  for  one  year  only.^    It  is  gen- 

[a]  "The  powers  not  delegated  to  the  United  States  by  the  constitu- 
tion, nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states  respec- 
tively, or  to  the  people":  Constitution  of  the  United  States,  art.  10. 

7  Wood   V.   St.   Paul   City   Ey.  621,  62  Atl.  969,  5  L.  E.  A.,  N.  S., 

Co.,  42  Minn.  411,  44  N.  W.  308,  415. 

7  L.  E.  A.  149.  2  Bouv.    Law    Diet.,    tit.    "No- 

1  29    Cyc.    Law    &    Proc,    p.  tary   Public";     U.    S.     Stat,     ap- 

1072;    Isl    Am.   &   Eng.    Ency.    of  proved  June  7,  1878,  20  Stat.  L. 

LJlw,  2d    ed.,  p.  556;    Carroll  v.  100,  2  F.  S.  A.  205,  5  F.  S.  A. 

State,   58     Ala.    396;     Brown   v.  379. 

State,  43  Tex.  478;  New  Orleans  3  29     Cyc.     Law     &    Proc,    p. 

V.  Bienvenu,    23    La.  Ann.   710;  1073;    21    Am.     &    Eng.   Cyc.   of 

Opinion    of    Justices,    73    N.    H.  Law,  2d  ed.,  p.  557. 


HISTORY  OF  THE  NOTARY  PUBLIC. 


erally  held,  though  the  legislation  varies  in  different  states, 
that  a  notary  must  be  a  citizen  and  a,  male;*  in  some  few 
states,  however,  of  which  Washington  is  one,  women  may  he 
appointed  to  the  office.*  At  common  law  a  minor  has  been 
held  eligible  to  the  office.®  It  is  also  provided  in  some  states 
that  persons  who  hold  certain  positions  cannot  be  appointed; 
for  example,  a  stockholder,  director,  cashier,  teller,  clerk  or 
other  officer  in  any  bank  or  banking  institution,  or  in  the 
employment  thereof.*^  By  statute  in  most  of  the  states  a 
notary  is  required,  before  assuming  the  duties  of  the  office, 
to  give  a  bond,  varying  in  amount  in  different  states,  with 
good  and  sufficient  sureties,  conditioned  for  the  faithful  per- 
formance of  his  duties.  Usually  this  bond  must  be  ap- 
proved by  some  designated  officer  and  filed  of  record.* 
Nearly  all  the  states  demand  that  the  notary  provide  himself 
with  a  seal,  although  in  many  states  it  is  not  necessary  in 


4  29  Cyc.  Law  &  Proc,  p. 
1071;  21  Am.  &  Eng.  Cyc.  of 
Law,  2d  ed.,  p.  556;  Wilson  v. 
Kimmel,  109  Mo.  260,  19  S.  W. 
24;  Opinion  of  Justices,  150 
Mass.  586,  23  N.  E.  850,  6  L.  E. 
A.  842;  Opinion  of  Justices,  165 
Mass.  599,  43  N.  E.  927,  32  L. 
E.  A.  350;  Stokes  v.  Acklen 
(Tenn.  Ch.  1898),  46  S.  W.  316; 
Chattanooga  Third  Nat.  Bank  v. 
Smith  (Tenn.  Ch.  1898),  47  S.  W. 
1102;  State  v.  Davidson,  92 
Tenn.  531,  22  S.  W.  203,  20  L. 
E.  A.  311;  State  v.  McKinley,  57 
Ohio  St.  627,  50  N.  E.  1134. 

5  Harbour-Pitt  Shoe  Co.  v. 
Dixon  (Ky.  1901),  60  S.  W.  186; 
State  V.  Hostetter,  137  Mo.  636, 
59  Am.  St.  Eep.  515,  39  S.  W. 
270,  38  L.  E.  A.  208;  Van  Dorn 
V.  Mengedoht,  41  Neb.  525,  59 
N.  W.  80O;  Wash.  Laws  1907, 
p.  264,  §1;  Eem.  &  Bal.  Code, 
§  8295. 

«  United  States  v.  Bixby,  9 
Fed.  78,  10  Biss.  520.  In  that 
case  it  was  held  that  an  infant 


may  be  a  notary  at  common  law, 
since  the  ofl5ce  is  ministerial; 
that  therefore  an  infant  might 
be  a  notary  in  Indiana  in  the 
absence  of  any  statutory  pro- 
hibition; also,  that  a  notary  was 
not  a  county  officer  within  the 
meaning  of  the  constitution  of 
Indiana  requiring  such  officers 
to  be  of  age. 

7  Pa.  Act,  April  14,  1840;  3 
Purdon  Dig.,  13th  ed.,  p.  3323; 
Commonwealth  v.  Pyle,  18  Pa. 
519;  Eupert's  Case,  16  Pa.  Co. 
Ct.  333;  Dunlap's  Case,  16  Pa. 
Co.  Ct.  588;  Fisher  v.  Kutztown 
Sav.  Bank,  3  Walk.  (Pa.)  477; 
compare  Horner's  Ann.  Stats. 
Ind.    (1896),    §§2021,   5966. 

8  21  Am.  &  Eng.  Ency.  of 
Law,  2d  ed.,  p.  558;  29  Cyc.  Law 
&  Proc,  p.  1103;  Tevis  v.  Ean- 
dall,  6  Cal.  632,  65  Am.  Dec. 
547;  Van  de  Casteele  v.  Corn- 
wall, 5  Cal.  419;  People  v.  But- 
ler, 74  Mich.  643,  42  N.  W.  273; 
Heidt  V.  Minor,  113  Cal.  385,  45 
Pac.  700. 


10  LAW  FOB  NOTAEIES  PUBLIC. 

all  cases  that  his  seal  be  attached  for  a  valid  authentication.® 
Generally,  however,  the  acts  of  a  foreign  notary  must  be  au- 
thenticated by  his  seal.^** 

The  powers  of  a  notary  may  be  generalized  as  follows: 
He  may  administer  oaths  and  take  aflfidavits ;  he  may  take 
depositions;  he  may  take  acknowledgments  of  creditors  to 
powers  of  attorney  and  proofs  of  debt  against  the  estate,  in 
bankruptcy  proceedings ;  he  may  take  acknowledgments ;  he 
may  note  and  extend  marine  protests;  he  may  present  for- 
eign bills  of  exchange  and  protest  them.^^  In  some  juris- 
dictions the  notarial  function  is  very  much  more  extensive. 
Thus  in  Alabama  the  governor  has  been  authorized  by  stat- 
ute to  appoint  a  limited  number  of  notaries  who  are  ex- 
oflficio  justices  of  the  peace  in  the  wards  for  which  they  are 
appointed.^2  And  in  states  or  countries  the  foundation  of 
whose  jurisprudence  is  the  Roman  law,  the  duties  of  a  no- 
tary public  are  often  of  great  variety  and  importance,  as 
in  Louisiana  and  in  Lower  Canada.^*  In  conclusion,  we  may 
say  that  a  notary  owes  his  client  the  general  duty  of  in- 
tegrity, diligence  and  skill,  payment  for  the  exercise  of 
which  is  fixed  by  statutes  in  the  different  states.** 

»  29    Cyc.    Law    &    Proc.,    p.  12  Douglass  v.  State,  117  Ala. 

1096;    21    Am.  &  Eng.  Ency.  of  185,   23    South.    142;    Harper  v. 

Law,    2d    ed.,   p.    559;    Miller   v.  State,    109    Ala.    66,    19    South. 

State,     122    Ind.    355,    24   N.   E.  901;   Carroll    v.    State,    58    Ala. 

156;  Neese  v.  Farmers'  Ins.  Co.,  396;  Eussellv.  Huntsville  E.  etc. 

55  Iowa,  604,  8  N.  W.  450;  Gates  Co.,  137  Ala'  627,  34  South.  855; 

V.  Brown,  1  Wash.  470,  25  Pae.  Bell  v.   State,    124    Ala.    94,   27 

470;  Stetson  etc.  Mill  Co.  v.  Mc-  South.  414. 

Donald,    5     Wash.    496,   32   Pac.  13  Stork    v.   American    Surety 

108.  Co.,  109  La.  713,  33  South.  742; 

10  Alabama  Nat.  Bank  v.  Schmitt  v.  Drouet,  42  La.  Ann. 
Chattanooga  Door  etc.  Co.,  106  1064,  21  Am.  St.  Eep.  408,  8 
Ala.  663,  18  South.  74;  Bayonne  South.  396;  Tete'a  Succession,  7 
Knife  Co.  v.  Umbenhauex,  107  La.  Ann.  95,  96;  Leveille  v. 
Ala.  496,  54  Am.  St.  Eep.  114,  Kauntz,  4  Quebec  Pr.  358;  Tail- 
18  South.  175;  Booth  v.  Cook,  20  lifer  v.  Taillifer,  21  Ont.  337. 
HI.  129.  14  29    Cyc.    Law    &    Proc,    p. 

11  29  Cyc.  Law  &  Proc,  pp.  1101;  Fogarty  v.  Finlay,  10  Cal. 
1076-1089;  21  Am.  &  Eng.  Ency.  239,  70  Ain.  Dec.  714;  Stork  v. 
of  Law,  2d  ed.,  pp.  562-567;  American  Surety  Co.,  109  La. 
Bouv.  Law  Diet.  (Eawle's  Kev.),  713,  716,  33  South.  742. 

tit.  "Notary  Public." 


HISTORY   OF  THE  NOTARY  PUBLIC.  11 

§  8.  The  Notary  Public  in  the  Territory  and  State  of 
Washington. — We  now  come  to  the  notary  public  in  the 
territory  and  state  of  Washington.  We  find  the  territorial 
fathers  passed  the  first  law  in  1854,  [a]  when  notaries  were 
to  be  "biennially  appointed  by  the  governor  for  the  several 
counties  as  he  shall  deem  expedient."  The  said  notaries 
were  authorized  "to  act,  transact,  do  and  finish  all  matters 
and  things  relating  to  protests,  and  protesting  bills  of  ex- 
change and  promissory  notes,  and  all  matters  within  their 
office  required  by  law."  They  could  take  depositions  as 
prescribed  by  law  and  acknowledgments  of  deeds  and  other 
instruments  and  administer  oaths.  On  the  death  or  removal 
of  the  notary  his  records  and  official  papers  were  to  be  de- 
posited in  the  office  of  the  clerk  of  the  district  court  for 
the  county  in  which  the  notary  resided.  If  that  direction 
were  not  followed  within  three  months  he  or  his  executors 
or  administrators  would  be  liable  to  a  fine  of  five  hundred 
dollars.  Before  performing  any  duties  as  notary  he  was  ob- 
liged to  provide  himself  with  an  official  seal  and  deposit  an 

[a]  When  the  territory  of  Washington  was  created  it  thereupon  fell 
heir  to  the  common  law  as  it  then  stood  modified  by  the  laws  of  the 
United  States  as  they  applied  to  the  territory  of  Oregon,  together  with 
all  Oregon  territorial  statutes  passed  subsequent  to  the  first  day  of 
September,  1848.     The  organic  act  is  as  follows: 

"Art.  2.  Legislative  Power. — Sec.  6.  And  he  it  further  enacted,  That 
the  legislative  power  of  the  territory  shall  extend  to  all  rightful  sub- 
jects of  legislation  not  inconsistent  with  the  constitution  and  laws  of 
the  United  States."  [Organic  act  establishing  the  territorial  govern- 
ment of  Washington  approved  March  2,  1853  (10  U.  S.  Stats,  at  Large, 
p.  172).] 

As  the  constitution  of  the  United  States  contains  no  provisions  gov- 
erning notaries  the  power  of  appointment  remained  in  the  states  and 
Congress  could  grant  any  legislative  powers  to  the  territories  it  saw  fit. 
By  virtue  of  this  fact  and  the  said  organic  act  the  legislature  of  the 
territory  passed  a  law  in  1854  establishing  the  office  of  "Notary  Public." 

In  1889  Washington  was  admitted  as  a  state.  In  the  state  constitu- 
tion  is    the    following: 

"§  1.  Legislative  Powers  Where  Vested. — The  legislative  powers  shall 
be  vested  in  a  senate  and  house  of  representatives,  which  shall  be  called 
the  legislature  of  the  state  of  Washington."     (Art.  2,  §  1.) 

By  virtue  of  these  powers  all  laws  governing  notaries  passed  since 
November  11,  1889,  are  valid. 

See  chapter  II  for  the  various  laws. 


12  LAW  FOB  NOTAEIES  PUBLIC. 

impression  of  the  same,  together  with  his  oath  and  his  bond 
in  the  office  of  the  secretary  of  the  territor}^  In  1857  an  act 
was  passed  extending  the  jurisdiction  of  a  notary  to  any 
county  of  the  judicial  district  to  which  he  belonged.  In 
1860  a  very  interesting  act  was  passed,  for  it  is  the  only  one 
of  its  kind  in  reference  to  notaries  to  be  found  in  the  laws ; 
it  is  an  act  to  legalize  the  acts  of  J.  J.  H.  Van  Bokkelen  as 
notary  between  May  14,  1859,  and  April  30,  1860. 

In  1861  an  act  was  passed  regulating  the  fees  and  costs  of 
a  notary.  He  was  allowed  a  dollar  for  a  protest ;  fifty  cents 
for  an  attestation,  noting  a  bill,  an  acknowledgment,  cer- 
tifying an  affidavit,  or  being  present  at  a  tender;  seventy- 
five  cents  for  registering  a  protest ;  and  twenty-five  cents 
for  an  oath.  In  1862  an  amendment  was  passed  to  that 
law  in  so  far  as  it  affected  the  counties  of  Spokane,  Sho- 
shone, Nez  Perce  and  Idaho.  In  those  counties  a  notary 
was  allowed  two  dollars  for  a  protest;  one  dollar  for  an  at- 
testation, noting  a  bill,  taking  an  acknowledgment,  certify- 
ing an  affidavit  or  being  present  at  a  demand,  tender  or 
deposit ;  one  dollar  and  a  half  for  registering  a  protest  and 
for  each  oath  or  affirmation.  In  1862  a  new  act  was  passed, 
"In  relation  to  notaries  public."  It  set  forth  that  the  gov- 
ernor should  appoint  as  many  notaries  public  for  the  ter- 
ritory of  Washington  "as  he  shall  deem  expedient,"  who 
should  hold  their  offices  for  a  period  of  three  years.  Said 
notaries  were  authorized  "to  act,  transact,  do  and  finish  all 
matters  and  things  relating  to  protests,"  and  all  "other 
matters  within  their  office  required  by  law";  to  take  depo- 
sitions and  acknowledgments  and  to  administer  oaths.  Each 
notary,  before  he  entered  upon  the  duties  of  his  office,  was 
to  provide  a  seal,  and  if  he  did  not  the  governor  might  re- 
move him  for  the  neglect.  The  power  was  also  given  to  the 
governor  to  remove  any  notary  for  incompetency.  Although 
the  law  was  so  explicit  as  to  the  necessity  of  a  seal,  yet  it 
went  on  to  say  that  it  was  not  necessary  for  the  notary  to 
attach  his  seal  if  the  document  in  question  was  to  be  used  in 
the  territory  of  Washington.  Then  all  that  was  necessary 
was  for  the  official  to  add  the  words  "Notary  Public,"  to  his 
signature.     On  the  19th  of  January,  1863,  a  new  law  was 


HISTORY  OF   TEE  NOTARY  PUBLIC.  13 

passed  practically  to  the  same  effect  as  the  former  law,  but 
including  the  bill  of  fees  and  adding  a  section  that  on  the 
death,  resignation  or  removal  of  a  notary  his  records  were 
to  be  sent  to  the  ofl&ce  of  the  auditor  of  the  county  in  which 
the  notary  resided,  and  fixing  a  penalty  of  five  hundred  dol- 
lars if  the  same  were  not  done  within  three  months.  It  was 
not  until  1869  that  another  act  in  relation  to  notaries  was 
passed,  and  that  was  the  same  as  the  act  of  1863  in  which 
the  favorite  words  "to  act,  transact,  do  and  finish  all  mat- 
ters and  things"  were  found,  but  there  was  added  an  en- 
abling clause  to  the  following  effect:  "And  all  official  acts 
heretofore  performed  in  this  territory  by  notaries  public, 
duly  commissioned  and  qualified  under  color  of  their  office, 
are  hereby  declared  authentic  and  valid,  though  such  acts 
may  have  been  performed  subsequently  to  the  time  or  term 
named  in  the  commission  appointing  said  notaries."  In  the 
session  of  1873  they  combined  the  previous  laws  in  a  new 
act  and  made  a  few  changes.  In  this  act,  approved  Novem- 
ber 14,  1873,  the  period  was  left  at  three  years,  the  notary 
was  required  to  have  a  seal  containing  the  words  "Notary 
Public"  and  "Washington  Territory,"  together  with  his 
surname  at  length  and  at  least  the  initials  of  his  Christian 
name,  and  he  was  required  to  take  the  oath  of  office,  sub- 
scribe the  same  and  to  file  it  in  the  office  of  the  secretary 
of  the  territory.  He  was  then  allowed,  after  paying  five 
dollars,  "to  transact  and  perform  all  matters  and  things 
relating  to  protests,  and  such  other  duties  as  pertain  to  that 
office  by  the  custom  and  law  of  merchants."  He  could 
take  acknowledgments,  depositions  and  affidavits,  adminis- 
ter oaths  and  "exercise  all  other  powers  and  perform  all 
other  duties,  heretofore  conferred  upon  him  by  law."  In 
this  act  it  was  set  forth  that  every  "attorney  at  law  who 
is  a  notary  public  may  administer  any  oath  to  his  client, 
and  no  pleading  or  affidavit  shall  on  that  account  be  held 
by  any  court  to  be  improperly  verified."  The  use  of  the 
seal  was  not  changed,  but  it  was  provided  that  each  notary 
should  keep  "a  true  record  of  all  notices  of  protest  given 
or  sent  by  him,  with  the  time  or  manner  in  which  the  same 
were  given  or  sent,  and  the  name  of  all  the  parties  to  whom 


14:  LAW  FOB  NOTARIES  PUBLIC. 

the  same  were  given  or  sent,  with  a  copy  of  the  instrument 
in  relation  to  which  the  notice  is  served  and  of  the  notice 
itself."  The  forfeit  for  not  depositing  the  records  within 
three  months  was  raised  to  one  thousand  dollars,  "to  be  re- 
covered in  a  civil  action  by  any  person  injured  by  such 
neglect."  And  also  the  fees  for  noting  a  bill,  taking  an 
acknowledgment  and  certifying  an  affidavit  with  the  seal 
were  raised  to  one  dollar.  On  the  11th  of  November,  1875, 
was  approved  "An  act  prescribing  the  qualifications  of  no- 
taries public,"  which  allowed  a  notary  to  use  the  words 
"Notarial  Seal"  or  "Notary  Public,"  "Washington  Terri- 
tory," on  his  seal,  together  with  his  name  as  before.  This 
act  was  passed  in  part  for  the  purpose  of  adding  to  the  law 
the  following  section :  *  *  Sec.  2.  After  delivery  of  a  commis- 
sion to  a  notary  public  so  appointed  and  qualified,  the  sec- 
retary shall  make  a  certificate  of  such  appointment,  with 
the  date  of  said  commission,  and  file  the  same  in  the  office 
of  the  clerk  of  the  district  court,  of  the  district,  where  such 
notary  resides,  who  shall  file  and  preserve  the  same,  and  it 
shall  be  deemed  sufficient  evidence  to  enable  such  clerk  to 
certify  that  the  person  so  commissioned  is  a  notary  public, 
during  the  time  such  commission  is  in  force."  Then  follows 
an  enabling  act  making  valid  all  official  acts  performed  by 
notaries  whose  seals  previous  to  this  time  had  on  them  the 
words  "Notarial  Seal"  instead  of  "Notary  Public."  At 
the  same  session  the  good  legislators  decided  that  the  no- 
taries had  too  much  power  in  being  allowed  to  perform 
their  official  acts  anywhere  in  the  state,  so  they  passed  a 
law  which  was  approved  on  the  12th  of  November,  as  fol- 
lows: "Notaries  public  are  hereby  declared  to  be  county 
officers,  and  they  shall  be  hereafter  appointed  by  the  gov- 
ernor of  the  territory  for  the  several  counties  in  the  terri- 
tory." The  next  act  on  notaries  was  approved  on  the  31st 
of  October,  1877,  when  the  previous  acts  were  brought  to- 
gether and  the  time  of  the  running  of  the  commission 
changed  to  four  years.  Otherwise  it  was  the  same,  with  one 
exception ;  that  was  as  to  how  the  accounts  should  be  kept 
at  Olympia.  On  the  13th  of  November,  1879,  an  act  was 
passed  amending  this  clause  as  to  the  accounts  and  on  the 


HISTORY   OP  THE  NOTARY  PUBLIC.  15 

10th  of  November,  1881,  an  act  was  passed  repealing  this 
amendment.  In  the  Code  of  1881  the  law  as  to  notaries 
forms  chapter  104;  it  was  merely  the  law  of  1877  set  out 
as  sections  2614-2625  of  the  new  code.  On  the  26th  of  No- 
vember, 1883,  section  2625  on  the  manner  of  handling  the 
expenses  of  the  commissions,  etc.,  in  the  office  of  the  sec- 
retary, was  amended;  and  on  the  28th  of  November,  1883, 
section  2615  was  amended  making  a  notary  an  officer  of 
the  territory  again.  On  the  2d  of  February,  1888,  an  act 
was  passed  validating  all  acts  performed  under  the  1883 
amendment.  The  Code  of  1881  was  the  law  until  1890, 
when  the  present  law  was  passed.  A  number  of  new  ideas 
were  introduced  in  the  new  law,  among  them  being  the 
provision  that  no  notary  would  be  appointed  except  on  the 
petition  of  at  least  twenty  freeholders  of  the  county  in 
which  such  person  resides,  that  the  state  treasurer  must  be 
paid  ten  dollars,  and  that  to  the  other  words  required  on 
the  seal  must  be  added  the  date  of  the  expiration  of  his 
commission.  The  scale  of  fees  was  changed  by  the  laws  of 
1890,  1893,  1903  and  1907,  so  that  the  dollar  fees  for  noting 
a  bill,  taking  an  acknowledgment  and  certifying  an  affidavit 
with  the  seal  were  changed  back  to  fifty  cents.  Otherwise 
the  law  now  is  practically  the  same  as  it  was  under  the  Code 
of  1881,  with  the  one  addition  that  women  were  allowed 
to  act  as  notaries  under  the  law  of  1907. 


16  LAW  FOB  NOTARIES  PUBLIC. 


CHAPTER  II. 

NOTARIAL   LAWS    OF    THE   TERRITORY    AND    STATE    OF 
WASHINGTON. 

An  Act  to  Provide  for  the  Appointment  of  Notaries  Public. 

Section  1,  Be  it  enacted  by  the  legislative  assembly  of  the  territory 
of  Washington,  There  shall  be  as  many  notaries  public  biennially  ap- 
pointed by  the  governor  for  the  several  counties  as  he  shall  deem  ex- 
pedient; and  they  shall  be  severally  commissioned  and  engaged  thereon, 
according  to  law.  • 

Sec.  2.  Notaries  public  are  hereby  authorized  within  their  respective 
counties  to  act,  transact,  do  and  finish  all  matters  and  things  relating 
to  protests,  and  protesting  bills  of  exchange  and  promissory  notes,  and 
all  matters  within  their  office  required  by  law;  to  take  depositions  as 
prescribed  by  law,  and  acknowledgments  of  deeds  and  other  instruments, 
and  to  administer  oaths. 

Sec.  3.  On  the  death,  resignation,  or  removal  from  office  of  any 
notary  public,  his  records,  together  with  all  his  official  papers,  shall  be 
deposited  in  the  office  of  the  clerk  of  the  district  court,  for  the  county 
in  which  the  said  notary  public  resided. 

Sec.  4.  If  any  notary  public  on  his  resignation  or  removal  from 
office,  shall  for  the  space  of  three  months,  neglect  to  deposit  his  records 
and  official  papers  in  the  clerk's  office,  he  shall  forfeit  a  sum  not  exceed- 
ing five  hundred  dollars. 

Sec.  5.  Every  notary  public,  before  he  enters  upon  the  duties  of  his 
office  shall  provide  an  official  seal,  and  deposit  an  impression  of  the  same, 
together  with  said  oath  and  bond,  in  the  office  of  the  secretary  of  the 
territory. 

Passed  March  16,  1854. 

An  Act  to  Regulate  Fees  and  Costs. 
Section  1.    Be  it  enacted  by  the  Legislative  Assembly  of  the  Territory 
of  Washington^  That  the  fees  and  compensation  of  the  several  officers 
and  persons  herein  named,  shall  be  as  follows,  to  wit: 

Notary    Public. 

6th.  For  every  protest  of  a  bill  of  exchange  or  promissory  note,  one 
dollar  and  fifty  cents. 

Attesting  any  instrument  of  writing,  and  seal,  one  dollar. 

Noting  a  bill  of  exchange  or  promissory  note  for  nonacceptance  or 
nonpayment,  one  dollar  and  fifty  cents. 

Drawing  and  taking  proof  of  acknowledgment  of  any  legal  instru* 
ment,  each  one  hundred  words,  thirty-five  cents. 


NOTARIAL  LAWS.  17 

Registering  protest  of  bill  of  exchange  or  promissory  note,  one  dollar 
and  twenty-five  cents. 

Certifying  an  affidavit,  and  all  other  certificates  under  seal,  one  dollar. 

Each  oath  or  affirmation,  fifty  cents. 

Being  present  at  demand,  tender,  or  deposit,  and  noting  the  same, 
including  traveling  fees  at  ten  cents  per  mile,  going  to  and  returning 
from,  fifty  cents. 

Passed  April  27,  1854, 

An  Act  Relating  to  Notaries  Public. 

"Powers  extended  to  all  the  counties  of  judicial  district  in  which  they 
belong." 

Section  1.  Be  it  enacted  by  the  Legislative  Assembly  of  tJie  Territory 
of  Washington,  That  notaries  public  may  exercise  all  the  powers  that 
are  conferred  upon  them  by  law,  or  may  hereafter  be  conferred  upon 
them,  in  any  county  of  the  judicial  district  to  which  they  belong. 

Passed  January  26,  1857. 

An  Act  to  Legalize  the  Acts  of  J.  J.  H.  Van  Bokkelen  as  Notary  Public, 
Between  May  14,  1859,  and  April  30,  1860. 

Section  1.  Be  it  enacted  by  the  Legislative  Assembly  of  the  Territory 
of  Washington,  That  the  acts  of  J.  J.  H.  Van  Bokkelen  as  notary 
public  of  the  third  judicial  district  of  this  territory,  made  between  May 
14,  1859,  and  April  30,  1860,  shall  be  and  remain  of  the  same  force 
and  validity  as  they  would  have  been  had  he  then  held  a  commission  as 
notary  public  according  to  law. 

Passed  December  18,  1860. 

An  Act  to  Regulate  Fees  and  Costs. 
Section  1.     Be  it  enacted  by  the  Legislative  Assembly  of  the  Terri- 
tory of   Washington,   That  the   fees  and  compensation   of   the  several 
officers  and  persons  herein  named,  shall  be  as  follows,  to  wit: 

Notary  Public. 

6th.  ±'or  every  protest  of  a  bill  of  exchange  or  promissory  note,  one 
dollar. 

Attesting  any  instrument  of  writing  and  seal,  fifty  cents. 

Noting  a  bill  of  exchange  or  promissory  note  for  nonacceptance  or 
nonpayment,  fifty  cents. 

Taking  acknowledgment  of  any  l^al  instrument,  fifty  cents. 

Registering  protest  of  bill  of  exchange  or  promissory  note,  seventy-five 
cents. 

Certifying  an  affidavit,  and  all  other  certificates  under  seal,  fifty  cents. 

Each  oath  or  affirmation  without  seal,  twenty-five  cents. 

Being  present  at  demand,  tender,  or  deposit,  and  noting  the  same, 
besides  mileage,  fifty  cents. 


18  LAW  FOB  NOTARIES  PUBLIC. 

For  any  instrument  of  writing  drawn  by  a  notary  public,  for  each 
one  hundred  words,  twenty-five  cents. 
Passed  January  27,  1861. 

An  Act  to  Amend  an  Act  Entitled  an  Act  Eegulating  Fees  and  Costs 
in  the  Counties  of  Spokane,  Shoshone,  Nez  Perce  and  Idaho. 

Section  1.  Be  it  enacted  by  the  Legislative  Assembly  of  the  Territory 
of  Washington,  That  the  fees  and  compensation  of  the  several  officers 
and  persons  herein  named,  shall  be  as  follows  in  the  counties  of  Spokane, 
Shoshone,  Nez  Perce  and  Idaho: 

Notary  Public. 

6.  Fop  every  protest  of  a  bill  of  exchange  or  promissory  note,  two 
doUars. 

Attesting  any  instrument  of  writing  and  seal,  one  dollar. 

Noting  a  bill  of  exchange  or  promissory  note  for  nonacceptance  or  non- 
payment, one  dollar. 

Taking  acknowledgment  of  any  legal  instrument,  one  dollar. 

Eegistering  protest  of  bill  of  exchange  or  promissory  note,  one  dollar 
and  fifty  cents. 

Certifying  an  affidavit,  and  all  other  certificates  under  seal,  one  dollar. 

Each  oath  or  affirmation  without  seal,  one  dollar  and  fifty  cents. 

Being  present  at  demand,  tender  or  deposit,  and  noting  the  same,  be- 
fiides  mileage,  one  dollar. 

For  any  instrument  of  writing  drawn  by  a  notary  public,  for  each 
one  hundred  words,  fifty  cents. 

Passed  January  23,  1862. 

An  Act  in  Relation  to  Notaries  Public. 
Section  1.  Be  it  enacted  by  the  Legislative  Assembly  of  the  Territory 
of  Washington,  That  the  governor  shall  hereafter  appoint  as  many 
notaries  public  for  said  territory  as  he  shall  deem  expedient,  who  shall 
hold  their  office  for  the  period  of  three  years,  and  until  their  successors 
shall  be  duly  appointed  and  qualified,  and  they  shall  be  severally  com- 
missioned and  engaged  thereon  according  to  law. 

Sec.  2.  Notaries  public  are  hereby  authorized  within  the  territory 
pf  Washington  to  act,  transact,  do  and  finish  all  matters  and  things 
relating  to  protests,  and  protesting  bills  of  exchange  and  promissory 
notes,  and  all  other  matters  within  their  office  required  by  law;  to  take 
depositions  as  prescribed  by  law,  and  acknowledgments  of  deeds  and 
other  instruments,  and  to  administer  oaths. 

Sec.  3.  Every  notary  public,  before  he  enters  upon  the  duties  of  his 
office,  shall  provide  an  official  seal,  which  shaU  be  approved  by  the  gov- 
ernor, and  shall  deposit  an  impression  of  the  same,  together  with  his 
official  oath,  in  the  office  of  the  secretary  of  the  territory. 


NOTARIAL  LAWS.  19 

Sec.  4.  The  governor  may  remove  any  person  heretofore',  or  who  may 
hereafter  be  appointed  a  notary  public,  who  has  or  shall  neglect  to  pro- 
vide himself  with  a  proper  official  seal,  or  who,  from  any  cause,  may  be 
incompetent. 

Sec.  5.  It  shall  be  sufficient  for  any  person  acting  as  notary  public, 
to  certify  an  oath  to  be  used  in  this  territory  in  any  of  the  courts,  or  in 
any  manner  whatever,  to  say  simply  in  addition  to  his  name  "Notary 
Public,"  and  all  the  courts  of  this  territory  shall  consider  an  oath  or 
affidavit  properly  certified  by  an  acting  notary  without  the  impression 
of  his  seal  or  other  or  further  addition. 

Sec.  6.  This  act  to  take  effect  and  be  in  force  from  and  after  its  pas- 
sage. 

Passed  January  27,  1862. 

An  Act  in  Belation  to  Notaries  Public. 

Section  1.  Be  it  enacted  by  the  Legislative  Assembly  of  the  Territory 
of  Washington,  That  the  governor  shall  hereafter  appoint  as  many 
notaries  public  for  said  territory  as  he  shall  deem  expedient,  who  shall 
hold  their  office  for  the  period  of  three  years,  and  until  their  successors 
shaU  be  duly  appointed  and  qualified,  and  they  shall  be  severally  commis- 
sioned and  engaged  thereon  according  to  law. 

Sec,  2.  Notaries  public  are  hereby  authorized  within  the  territory  of 
Washington  to  act,  transact,  do  and  finish  all  matters  and  things  relating 
to  protests,  and  protesting  bills  of  exchange  and  promissory  notes,  and 
all  other  matters  within  their  office  required  by  law;  to  take  depositions 
as  prescribed  by  law,  and  acknowledgments  of  deeds  and  other  instru- 
ments, and  to  administer  oaths,  for  which  they  may  charge  and  receive 
the  fees  herein  enumerated: 

For  every  protest  of  a  bill  of  exchange  or  promissory  note,  one  dollar. 

Attesting  any  instrument  of  writing  and  seal,  fifty  cents. 

Noting  a  bill  of  exchange  or  promissory  note  for  nonacceptance  or  non- 
payment, fifty  cents. 

Taking  acknowledgment  of  any  legal  instrument,  fifty  cents. 

Eegistering  protest  of  bill  of  exchange  or  promissory  note,  seventy-five 
cents. 

Certifying  an  affidavit,  and  all  other  certificates  under  seal,  fifty  cents. 

Each  oath  or  affirmation  without  seal,  twenty-five  cents. 

Being  present  at  demand,  tender,  or  deposit,  and  noting  the  same, 
besides  mileage,  fifty  cents. 

For  any  instrument  of  writing  drawn  by  a  notary  public,  for  each 
one  hundred  words,  twenty-five  cents. 

Sec.  3,  Every  notary  public,  before  he  enters  upon  the  duties  of  his 
office,  shall  provide  an  official  seal,  which  shall  be  approved  by  the  gov- 
ernor, and  shall  deposit  an  impression  of  the  same,  together  with  his 
official  oath,  in  the  office  of  the  secretary  of  the  territory. 


20  LAW  FOR  NOTARIES  PUBLIC. 

Sec.  4.  The  governor  may  remove  any  person  heretofore,  or  who  may 
hereafter  be  appointed  a  notary  public,  who  has  or  shall  neglect  to  pro- 
vide himself  with  a  proper  official  seal,  or  who,  from  any  cause,  may  be 
incompetent,  and  on  the  death,  resignation,  or  removal  from  office  of  any 
notary  public,  his  records,  together  with  all  his  official  papers,  shall  be 
deposited  in  the  office  of  the  county  auditor  for  the  county  in  which  the 
said  notary  public  resided.  If  any  notary  public  on  his  resignation  or 
removal  from  office  shall  for  the  space  of  three  months  neglect  to  deposit 
his  records  and  official  papers  with  the  auditor,  he  shall  forfeit  a  sum 
not  exceeding  five  hundred  dollars. 

Sec.  5.  It  shall  be  sufficient  for  any  person  acting  as  notary  public, 
to  certify  an  oath  to  be  used  in  this  territory  in  any  of  the  courts,  or  in 
any  manner  whatever,  to  say  simply  in  addition  to  his  name  "Notary 
Public,"  and  all  the  courts  of  this  territory  shall  consider  an  oath  or 
affidavit  properly  certified  by  an  acting  notary  without  impression  of  his 
seal  or  other  or  further  addition. 

Sec.  6.     This  act  to  take  effect  and  be  in  force  from  and  after  its 
passage. 
Passed  January  19,  1863. 

An  Act  in  Relation  to  Notaries  Public. 

Section  1.  Be  it  enacted  by  the  Legislative  Assembly  of  tTie  Terri- 
tory of  Washington,  That  the  Governor  shall  hereafter  appoint  as  many 
notaries  public  for  said  territory  as  he  shall  deem  expedient,  who  shall 
hold  their  office  for  the  period  of  three  years,  and  they  shall  be  severally 
commissioned  and  qualified,  according  to  law. 

Sec.  2.  Notaries  public  are  hereby  authorized  within  the  territory  of 
Washington  to  act,  transact,  do  and  finish  all  matters  and  things  relating 
to  protests,  and  protesting  bills  of  exchange  and  promissory  notes,  and 
all  other  matters  within  their  office  required  by  Jaw;  to  take  depositions 
as  prescribed  by  law,  and  acknowledgments  of  deeds  and  other  instru- 
ments, and  to  administer  oaths,  for  which  they  may  charge  the  fees 
herein  enumerated: 

For  every  protest  of  a  bill  of  exchange  or  promissory  note,  one  dollar. 

Attesting  any  instrument  of  writing  and  seal,  fifty  cents. 

Noting  a  bill  of  exchange  or  promissory  note  for  nonacceptance  or 
nonpayment,  fifty  cents. 

Taking  acknowledgment  of  any  legal  instrument,  fifty  cents. 

Registering  protest  of  a  bill  of  exchange  or  promissory  note,  seventy- 
five  cents. 

Certifying  an  affidavit,  and  all  other  certificates  under  seal,  fifty  cents. 

Each  oath  or  affirmation  without  seal,  twenty-five  cents. 

Being  present  at  demand,  tender,  or  deposit,  and  noting  the  same,  be- 
sides mileage,  fifty  cents. 

For  any  instrument  of  writing  drawn  by  a  notary  public,  for  each 
one  hundred  words,  twenty-five  cents. 


NOTARIAL  LAWS.  21 

Sec.  3.  Everj  notary  public,  before  he  enters  upon  the  duties  of  hia 
office,  shall  provide  an  official  seal,  which  shall  be  approved  by  the  gov- 
ernor, and  shall  deposit  an  impression  of  the  same,  together  with  his 
official  oath,  in  the  office  of  the  secretary  of  the  territory. 

Sec.  4.  The  governor  may  rertiove  any  person  heretofore,  or  who  may 
hereafter  be  appointed  a  notary  public,  who  has  or  shall  neglect  to  pro- 
vide himself  with  a  proper  official  seal,  or  who,  from  any  cause,  may  be 
incompetent,  and  on  the  death,  resignation,  or  removal  from  the  office 
of  any  notary  public,  his  records,  together  with  aU  his  official  papers, 
shall  be  deposited  in  the  office  of  the  county  auditor  for  the  county  in 
which  the  said  notary  public  resided.  If  any  notary  public  on  his  resig- 
nation or  removal  from  office  shall  for  the  space  of  three  months  neglect 
to  deposit  his  records  and  official  papers  with  the  auditor,  he  shall  for- 
feit a  sum  not  exceeding  five  hundred  dollars. 

See.  5.  It  shall  be  sufficient  for  any  person  acting  as  notary  public, 
to  certify  an  oath  to  be  used  in  this  territory  in  any  of  the  courts,  or  in 
any  manner  whatever,  to  say  simply  in  addition  to  his  name  "Notary 
Public,"  and  all  the  courts  of  this  territory  shall  consider  an  oath  or  affi- 
davit properly  certified  by  an  acting  notary  without  the  impression  of 
hia  seal  or  other  or  further  addition.  And  all  official  acts  heretofore 
performed  in  this  territory  by  notaries  public,  duly  commissioned  and 
qualified  under  color  of  their  office,  are  hereby  declared  authentic  and 
valid,  though  such  acts  may  have  been  performed  subsequently  to  the 
time  or  term  named  in  the  commission  appointing  said  notaries. 

Sec.  6.  This  act  to  take  effect  and  be  in  force  from  and  after  its 
passage. 

Approved  November  19,  1869. 

An  Act  Creating  the  Office  of  Notary  Public  and  Prescribing  the  Duties, 
Powers  and  Emoluments  Thereof. 

Section  1.  Be  it  enacted  by  the  Legislative  Assemhly  of  the  Terri- 
tory of  Washington,  That  the  governor  shall  hereafter  appoint  and  com- 
mission as  many  notaries  public  as  he  shall  deem  expedient,  and  he  may, 
at  any  time,  revoke  any  appointment. 

Sec.  2.  Every  notary  public  shall  hold  his  office  for  three  years  from 
the  date  of  his  commission  unless  his  appointment  is  sooner  revoked. 

Sec.  3.  Before  any  commission  is  delivered  to  the  person  appointed, 
he  shall  procure  a  seal,  on  which  shall  be  engraved  the  words  "Notarial 
Seal"  and  "Washington  Territory,"  with  his  surname  at  length  and  at 
least  the  initials  of  his  Christian  name:  Provided,  That  any  seal  of  any 
notary  public  which  has  been  duly  approved  by  the  governor  prior  to  the 
passage  of  this  act,  shall  be  lawful  during  the  continuance  in  office  of 
such  notary  public.  He  shall  also  take  and  subscribe  the  oath  of  office 
required  of  all  territorial  officers  and  file  the  same,  together  with  a  dis- 
tinct impression  of  his  official  seal,  in  the  office  of  the  secretary  of  the 
territory. 


22  LAW  FOR  NOTARIES  PUBLIC. 

Sec.  4,  When  the  secretary  of  the  territory  is  satisfied  that  the  re- 
quirements of  the  foregoing  section  have  been  fully  complied  with,  he 
shall  deliver  the  commission  to  the  person  appointed,  and  who  shall  there- 
upon be  authorized  to  enter  upon  the  duties  of  his  office. 

Sec.  5.  No  money  shall  hereafter  be  paid  out  of  the  territorial  treas- 
ury for  any  expense  connected  with  the  appointment  of  notaries  public, 
but  every  applicant  shall  pay  to  the  secretary  five  dollars  prior  to  the 
delivery  of  his  commission,  oat  of  which  amounts  the  secretary  shall  pay  ' 
all  the  expenses  of  printing  blank  commissions,  blank  oaths  of  office, 
postage  and  other  incidental  expenses  connected  therewith,  and  the  secre- 
tary shall  also  cause  to  be  printed  out  of  the  fees  so  received  a  sufficient 
number  of  copies  of  this  act  and  he  shall  deliver  to  each  notary  public 
hereafter  appointed  a  copy  of  the  same. 

Sec.  6.  Every  notary  public  is  authorized  within  the  territory  of 
Washington : 

1.  To  transact  and  perform  all  matters  and  things  relating  to  pro- 
tests, protesting  biUs  of  exchange  and  promissory  notes,  and  such  other 
duties  as  pertain  to  that  office  by  the  custom  and  law  of  merchants. 

2.  To  take  acknowledgments  of  all  deeds  and  other  instruments  of 
writing,  and  certify  the  same  in  the  manner  required  by  law. 

3.  To  take  depositions  and  affidavits,  and  administer  all  oaths  re- 
quired by  law  to  be  administered,  and  every  attorney  at  law  who  is  a 
notary  public,  may  administer  any  oath  to  his  client,  and  no  pleading; 
or  affidavit  shall  on  that  account  be  held  by  any  court  to  be  improperly 
verified. 

4.  To  exercise  all  other  powers  and  perform  all  other  duties  here- 
tofore conferred  upon  him  by  law. 

Sec.  7.  It  shall  be  sufficient  for  any  person  acting  as  notary  public 
to  certify  an  oath  to  be  used  in  this  territory,  in  any  of  the  courts, 
or  in  any  manner  whatsoever,  to  say  simply  iji  addition  to  his  name, 
"Notary  Public,"  and  all  the  courts  of  this  territory  shall  consider  an 
oath  or  affidavit  otherwise  properly  certified  by  an  acting  notary  public, 
without  the  impression  of  his  seal,  or  other  further  addition. 

Sec.  8.  Every  notary  is  required  to  keep  a  true  record  of  all  notices 
of  protest  given  or  sent  by  him,  with  the  time  and  manner  in  which 
the  same  were  given  or  sent,  and  the  name  of  all  the  parties  to  whom 
the  sam«  were  given  or  sent,  with  the  copy  of  the  instrument  in  rela- 
tion to  which  the  notice  is  served  and  of  the  notice  itself. 

Sec.  9.  On  the  death,  resignation  or  removal  from  office,  and  at  the 
expiration  of  the  term  of  office,  of  any  notary  public,  his  records  with 
all  his  official  papers,  shall  within  three  months  therefrom  be  deposited 
in  thfc  office  of  the  auditor  of  the  county  in  which  such  notary  shall 
have  kept  his  office,  and  if  any  notary,  on  his  resignation  or  removal 
from  office,  shall  for  the  space  of  three  months  neglect  to  so  deposit 
bis  records,  he  shall  forfeit  a  sum  not  exceeding  one  thousand  dollars, 
to  be  recovered  in  a  civil  action  by  any  person  injured  by  such  neglect, 


NOTARIAL  LAWS.  23 

and  it  shall  also  be  the  duty  of  the  executor  or  administrator  of  the 
estate  of  any  notary  public,  deceased,  to  deposit  the  records  and  official 
papers  of  such  notary  with  the  said  auditor,  and  within  three  months 
after  his  appointment  under  like  penalty. 

Sec.  10.  Every  notary  public  is  entitled  to  demand  and  receive  the 
fees  herein  enumerated: 

For  every  protest  of  a  bill  of  exchange  or  promissory  note,  one  dollar. 

Attesting  any  instrument  of  writing,  under  seal,  one  dollar. 

Noting  a  bill  of  exchange  or  promissory  note  for  nonacceptance  or 
nonpayment,  one  dollar. 

Taking  acknowledgment  of  any  legal  instrument,  one  dollar. 

Registering  protest  of  bill  of  exchange  or  promissory  note,  seventy- 
five  cents. 

Certifying  an  affidavit,  and  all  other  certificates  under  seal,  one  dollar. 

Each  oath  or  affirmation  without  seal,  twenty-five  cents. 

Being  present  at  demand,  tender  or  deposit,  and  noting  the  same,  be- 
sides mileage  at  ten  cents  per  mile,  fifty  cents. 

For  any  instrument  of  writing  drawn  by  a  notary  public,  for  each 
hundred  words,  twenty-five  cents. 

Sec.  11.  All  acts  and  parts  of  acts  in  any  manner  conflicting  with 
any  of  the  provisions  of  this  act  be  and  the  same  are  hereby  repealed. 

Sec.  12.  This  act  shall  take  effect  and  be  in  force  from  and  after 
its  passage. 

Approved  November  14,  1873. 

An  Act  Prescribing  the  Qualifications  of  Notaries  Public. 
Section  1.    Be  it  enacted  by  the  Legislative  Assembly  of  the  Terri- 
tory of  Washington,  That,  before  a  commission  shall  issue  to  any  notary 
public,  who  shall  have  been  appointed,  or  may  be  appointed  by  the  gov- 
ernor of  the  territory,  said  appointee  shall: 

1.  Procure  a  seal  on  which  shall  be  engraved  the  words  "Notary  Pub- 
lic," "Notarial  Seal,"  or  words  of  equivalent  import,  and  "Washington 
Territory,"  vnth  his  surname  in  full,  and  at  least  the  initials  of  his 
Christian  name. 

2.  Take  the  oath  of  office  prescribed  in  the  act  creating  the  office  of 
notary  public. 

3.  Append  to  said  oath  of  office  a  clear  impression  of  his  official  seal, 
which  seal  shall  be  approved  by  the  governor. 

4.  File  said  oath  of  office  and  impression  and  approval  of  seal  in  the 
office  of  the  secretary  of  the  territory. 

Sec.  2.  After  delivery  of  a  commission  to  a  notary  public  so  ap- 
pointed and  qualified,  the  secretary  shall  make  a  certificate  of  such  ap- 
pointment, with  the  date  of  said  commission,  and  file  the  same  in  the 
office  of  the  clerk  of  the  district  court,  of  the  district,  or  subdistrict, 
where  such  notary  resides,  who  shall  file  and  preserve  the  same,  and 
it  shall  be  deemed  saificient  evidence  to  enable  such  clerk  to  certify 


24  LAW  FOB  NOTARIES  PUBLIC. 

that  the  person  so  commissioned  is  a  notary  public,  during  the  time  such 
commission  is  in  force. 

Sec.  3.  All  official  acts  heretofore  done  and  performed  by  notaries 
public  in  this  territory  and  attested  by  their  official  seal,  shall  be  taken 
as  valid,  and  of  full  force  and  effect,  if  such  seals  have  been  approved 
by  the  governor  of  the  territory,  at  the  time  of  commissioning  said 
notaries  public,  whether  such  official  seals  have  engraved  thereon  the 
words  "Notarial  Seal,"  or  "Notary  Public,"  or  other  equivalent  words 
distinguishing  such  office.  Anything  in  section  three  of  the  act  entitled 
"An  act  creating  the  office  of  notary  public  and  prescribing  the  duties 
and  powers  and  emoluments  thereof,"  approved  November  14,  1873,  to 
the  contrary  thereof  notwithstanding. 

Sec.  4.  This  act  to  take  effect  and  be  in  force  from  and  after  its 
passage. 

Approved  November  11,  1875. 

An  Act  Eelating  to  Notaries  Public, 

Section  1.  Be  it  enacted  "by  the  Legislative  Assembly  of  the  Terri- 
tory of  Washington,  That  notaries  public  are  hereby  declared  to  be 
county  officers,  and  they  shall  be  hereafter  appointed  by  the  governor  of 
the  territory  for  the  several  counties  in  this  territory. 

See.  2.  Nothing  in  this  act  contained  shall  be  so  construed  as  to  pre- 
vent any  duly  qualified  notary  public  from  exercising  any  or  all  of 
the  powers  and  duties  of  his  office  in  any  county  in  this  territory. 

Sec.  3.     All  acts  in  conflict  herewith  are  hereby  repealed. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force  from  and  after  its 
approval. 

Approved  November  12,  1875. 

An  Act  in  Eelation  to  Notaries  Public. 

Section  1.  Be  it  enacted  by  the  Legislative  Assembly  of  the  Terri- 
tory of  Washington,  That  the  governor  shall  hereafter  appoint  and  com- 
mission as  many  notaries  public  as  he  shall  deem  expedient,  and  he  may, 
at  any  time,  revoke  any  appointment. 

Sec.  2.  Every  notary  public  shall  be  appointed  for  the  county  in 
which  he  resides,  and  shall  hold  his  office  for  four  years,  unless  his  ap- 
pointment is  sooner  revoked. 

Sec.  3.  Before  a  commission  shall  issue  to  a  person  appointed  he 
shaU: 

1.  Pay  into  the  territorial  treasury  the  sum  of  five  dollars,  taking  the 
territorial  treasurer's  receipt  therefor. 

2.  Procure  a  seal,  on  which  shall  be  engraved  the  words  "Notary 
Public,"  "Notarial  Seal,"  or  words  of  equivalent  import,  and  "Wash- 
ington Territory,"  with  his  surname  in  full,  and  at  least  the  initials  of 
bis  Christian  name. 


NOTARIAL  LAWS.  25 

3.  To  take  and  subscribe  the  oath  of  office  required  of  all  territorial 
or  county  officers. 

4.  Append  to  the  said  oath  a  clear  impression  of  his  official  seal, 
which  seal  shall  be  approved  by  thb  governor. 

5.  File  the  said  oath  of  office,  impression  and  approval  of  seal,  and 
territorial  treasurer's  receipt,  in  the  office  of  the  secretary  of  the  terri- 
tory. 

Sec.  4.  When  the  secretary  of  the  territory  is  satisfied  that  the  re- 
quirements of  the  foregoing  section  have  been  fully  complied  with,  he 
shall  so  inform  the  governor,  who  shall  issue  or  cause  to  be  issued  a  com- 
mission to  the  person  appointed,  who  shall  thereupon  be  authorized  to 
enter  upon  the  duties  of  his  office. 

Sec.  5.  Every  duly  qualified  notary  public  is  authorized  in  any  county 
in  this  territory: 

1.  To  transact  and  perform  all  matters  and  things  relating  to  protests, 
protesting  bills  of  exchange  and  promissory  notes,  and  such  other  duties 
as  pertain  to  that  office  by  the  custom  and  law  of  merchants. 

2.  To  take  acknjawledgments  of  all  deeds  and  other  instruments  of 
writing,  and  certify  the  same  in  the  manner  required  by  law. 

3.  To  take  depositions  and  affidavits,  and  administer  all  oaths  required 
by  law  to  be  administered,  and  every  attorney  at  law  who  is  a  notary 
public,  may  administer  any  oath  to  his  client,  and  no  pleading  or  affi- 
davit shall  on  that  account  be  held  by  any  court  to  be  improperly  veri- 
fied. 

Sec.  6.  It  shall  be  sufficient  for  any  notary  public,  to  certify  an  oath 
to  be  used  in  this  territory,  in  any  of  the  courts,  or  in  any  manner  what- 
soever, to  say  simply  in  addition  to  his  name,  "notary  public,"  and  all 
the  courts  of  this  territory  shall  consider  an  oath  or  affidavit  otherwise 
properly  certified  by  an  acting  notary  public,  without  the  impression  of 
his  seal,  or  other  further  addition. 

Sec.  7.  Every  notary  is  required  to  keep  a  true  record  of  all  notices 
of  protest  given  or  sent  by  him,  with  the  time  and  manner  in  which  the 
same  were  given  or  sent,  and  the  name  of  all  the  parties  to  whom  the 
same  were  given  or  sent,  with  the  copy  of  the  instrument  in  relation  to 
which  the  notice  is  served  and  of  the  notice  itself. 

Sec.  8.  On  the  death,  resignation  «r  removal  from  office,  and  at  the 
expiration  of  the  term  of  office,  of  any  notary  public,  his  records  and 
(with)  all  his  official  papers,  shall  within  three  months  therefrom  be 
deposited  in  the  office  of  the  auditor  of  the  county  for  (in)  which  such 
notary  shall  have  been  appointed  (kept  his  office),  and  if  any  notary,  on 
his  resignation  or  removal  from  office,  shall  for  the  space  of  three  months 
neglect  to  so  deposit  his  records,  he  shall  forfeit  a  sum  not  exceeding 
one  thousand  dollars,  to  be  recovered  in  a  civil  action  by  any  person  in- 
jured by  such  neglect,  and  it  shall  also  be  the  duty  of  the  executor  or 
administrator  of  the  estate  of  any  notary  public,  deceased,  to  deposit 


26  LAW  FOB  NOTARIES  PUBLIC. 

the  recorcis  and  official  papers  of  such  notary  with  the  said  auditor,  and 
within  three  months  after  his  appointment  under  like  penalty. 

Sec.  9.  Every  notary  public  is  entitled  to  demand  and  receive  the  fees 
herein  enumerated: 

For  every  protest  of  a  biU  of  exchange  or  promissory  note,  one  dollar. 

Attesting  any  instrument  of  writing,  under  seal,  one  dollar. 

Noting  a  bill  of  exchange  or  promissory  note  for  nonacceptance  or 
nonpayment,  one  dollar. 

Taking  acknowledgment  of  any  legal  instrument,  one  dollar. 

Eegistering  protest  of  bill  of  exchange  or  promissory  note,  seventy -five 
cents. 

Certifying  an  affidavit,  and  all  other  certificates  under  seal,  one  dollar. 

Each  oath  or  affirmation  without  seal,  twenty-five  cents. 

Being  present  at  demand,  tender  or  deposit,  and  noting  the  same,  be- 
sides mileage  at  ten  cents  per  mile,  fifty  cents. 

For  any  instrument  of  writing  drawn  by  a  notary  public,  for  each 
hundred  words,  twenty-five  cents. 

Sec.  10.  After  the  delivery  of  a  commission  to  a,  notary,  appointed 
and  qualified  as  heretofore  provided,  the  secretary  of  the  territory  shall 
make  a  certificate  of  such  appointment,  with  the  date  of  said  commission, 
and  file  the  same  in  the  office  of  the  clerk  of  the  district  court  of  the  dis- 
trict or  subdistrict  where  such  notary  resides,  who  shall  file  and  pre- 
serve the  same,  and  it  shall  be  deemed  sufficient  evidence  to  enable  such 
clerk  to  certify  that  the  person  so  commissioned  is  a  notary  public  dur- 
ing the  time  such  commission  is  in  force. 

See.  11.  All  official  acts  heretofore  done  and  performed  by  notaries 
public  in  this  territory,  and  attested  by  their  official  seals,  shall  be  taken 
as  valid  and  of  full  force  and  effect,  if  such  seals  were  approved  by  the 
governor  of  the  territory  at  the  time  of  commissioning  said  notaries  pub- 
Uc. 

Sec.  12.  The  territorial  treasurer  shall  keep  aU  moneys  received  by 
him  under  the  provisions  of  this  act  as  a  special  fund  and  pay  the  same 
out  only  upon  warrants  drawn  by  the  territorial  auditor  against  the  said 
fund,  and  whatsoever  of  the  said  fund  shall  remain  in  his  hands,  un- 
appropriated as  hereinafter  provided,  at  the  end  of  each  fiscal  year,  shall 
be  transferred  to  the  general  fund. 

Sec.  13.  The  territorial  auditor  shall,  upon  presentation  to  him  by 
the  secretary  of  the  territory,  of  bills  or  vouchers  for  postage,  the  pur- 
chase or  printing  of  blanks,  commissions,  circulars,  letters,  instructions, 
acts,  etc.,  to  be  used  or  distribtited  by  the  said  secretary  of  the  terri- 
tory in  matters  pertaining  to  the  appointment  or  commissioning  of  no- 
taries public,  audit  the  same,  and  draw  his  warrant  upon  the  territorial 
treasury,  against  the  said  special  fund  for  the  amount  allowed  by  him, 
in  favor  of  the  secretary  of  the  territory,  and  the  territorial  treasurer 
shall  pay  the  same  out  of  the  said  special  fund  only. 


NOTARIAL  LAWS.  27 

Sec.  14.  All  acts  and  parts  of  acts  heretofore  passed  in  relation  to 
notaries  public,  be  and  the  same  are  hereby  repealed. 

Sec.  15.  This  act  to  take  effect  and  be  in  force  from  and  after  its 
passage. 

Approved  October  31,  1877. 

An  Act  to  Amend  an  Act  Entitled  "An  Act  in  Relation  to  Notaries 
Public,"  Approved   October  31,  1877. 

Section  1.  Be  it  enacted  by  the  Legislative  Assembly  of  the  Territory 
of  Washington,  That  section  thirteen  of  an  act  approved  October  31, 
1877,  in  relation  to  notaries  public,  be  and  the  same  is  hereby  amended 
so  as  to  read  as  follows:  "The  territorial  auditor  shall,  upon  presenta- 
tion to  him  by  the  secretary  of  the  territory  of  bills  or  vouchers  for 
postage,  the  purchase  or  printing  of  blanks,  commissions,  circular  letters, 
instructions,  acts,  (and  other  incidental  expenses)  of  the  secretary's 
office,  audit  the  same  and  draw  his  warrant  upon  the  territorial  treasury 
against  the  said  special  fund  for  the  amount  allowed  by  him  in  favor 
of  the  secretary  of  the  territory,  and  the  territorial  treasurer  shall  pay 
the  same  out  of  the  said  special  fund  only. 

Sec.  2.  This  act  shall  take  effect  and  be  in  force  from  and  after  its 
approval. 

Approved  November  13,  1879. 

An  Act  to  Bepeal  an  Act  Entitled  "An  Act  to  Amend  an  Act  in  Rela- 
tion to  Notaries  Public,"  Approved  November  13,  1879, 

Section  1.  Be  it  enacted  by  the  Legislative  Assembly  of  the  Terri- 
tory of  Washington,  That  an  act  entitled  "An  act  to  amend  an  act  en- 
titled an  act  in  relation  to  notaries  public,"  approved  November  13, 
1879,  be  and  the  same  is  hereby  repealed. 

See.  2.  This  act  shall  take  effect  and  be  in  force  from  and  after  its 
passage  and  approval. 

Approved  November  10,  1881. 

On  the  6th  of  December,  1881,  the  Code  of  1881  became  a  law.  In 
that  the  law  as  to  notaries,  chapter  CCIV,  sections  2614-2625,  was  a 
copy  of  the  law  passed  in  1877  together  with  the  amendments  of  1879. 

An  Act  to  Amend  Chapter  CCIV  of  the  Code  of  Washington. 

Section  1.  Be  it  enacted  by  the  Legislative  Assembly  of  the  Terri- 
tory of  Washington,  That  chapter  CCIV  of  the  Code  of  Washington,  be 
amended  by  striking  out  subdivision  one,  of  section  2616,  and  inserting, 
in  lieu  thereof,  the  following: 

1.  "Pay  to  the  secretary  of  the  territory  the  sum  of  five  dollars:  Pro- 
vided, That  from  the  proceeds  of  the  sum  hereby  set  apart  as  compensa- 
tion to  the  secretary  of  the  territory,  the  said  secretary  shall  furnish 
all  necessary  stationery,  blank  appointments,  and  commissions  in  refer- 
ence to  the  appointment  of  notaries  public." 


28  LAW  FOB  NOTARIES  PUBLIC. 

Sec.  2.  That  chapter  CCIV  of  the  Code  of  "Washington  be  further 
amended  by  striking  out  section  2625. 

Sec.  3.     This  act  shall  take  effect  from  and  after  its  approval. 
Approved  November  26,  1883. 

An  Act  to  Amend  Section  Two   Thousand  Six  Hundred  and   Fifteen, 
Chapter  Two  Hundred  and  Four  of  the  Code  of  Washington. 

Be  it  enacted  by  the  Legislative  Assembly  of  the  Territory  of  Wash- 
ington: 

Section  1.  That  section  two  thousand  six  hundred  and  fifteen  of 
chapter  two  hundred  and  four  of  the  Code  of  Washington,  relating  to 
notaries  public,  be  and  the  same  is  hereby  amended  so  as  to  read: 

"Section  2615.  Every  notary  public  shall  be  appointed  for  the  terri- 
tory in  which  he  resides,  and  shall  hold  his  office  for  four  years,  unless 
his  appointment  is  sooner  revoked;  and  all  official  acts  heretofore  done 
or  performed  by  notaries  public  in  any  county  in  this  territory,  other 
than  that  in  which  they  at  that  time  resided,  or  for  which  their  com- 
mission issued,  shall  be  valid  and  of  full  force  and  effect." 

Sec.  2.  All  acts  and  parts  of  acts  in  conflict  with  this  act  are  hereby 
repealed. 

Sec.  3.  This  act  shall  take  effect  and  be  in  force  from  and  after  its 
passage  and  approval. 

Approved  November  28,  1883. 

An  Act  Validating  the  Acts  of  Notaries  Public  Appointed  Under  and 
by  Virtue  of  an  Act  Entitled,  "An  Act  to  Amend  Section  2615, 
Chapter  CCIV,  of  the  Code  of  Washington,"  Approved  November 
28,  1883,  and  Appointments  Made  Thereunder. 

Be  it  enacted  by  the  Legislative  Assembly  of  the  Territory  of  Wash- 
ington: 

Section  1,  That  all  appointments  of  notaries  public  in  Washington 
Territory  made  by  the  governor,  under  and  by  virtue  of  an  act  entitled, 
"An  act  to  amend  section  2615,  chapter  CCIV,  of  the  Code  of  Washing- 
ton," approved  November  28,  1883,  be  and  the  same  are  hereby  declared 
to  be  valid  and  legal. 

Sec.  2.  No  official  act  heretofore  done  or  performed,  or  hereafter  to 
be  done  or  performed  by  any  notary  public  of  this  territory  appointed 
under  the  provisions  of  the  act  aforesaid,  shall  be  invalidated  or  con- 
sidered null  or  void  by  reason  of  any  irregularity  or  informality  in  their 
appointments,  or  by  reason  of  the  invalidity  of  said  statute. 

Sec.  3.  This  act  to  take  effect  and  be  in  force  from  and  after  its 
passage  and  approval. 

Approved  February  2,  1888. 


NOTARIAL  LAWS.  29 

NOTARIES  PUBLIC. 

An  Act  to  Provide  for  the  Appointment,  Qualification,  and  Duties  of 
Notaries  Public,  Certifying  Their  Official  Acts,  and  Declaring  an 
Emergency  to  Exist. 

Be  it  enacted  by  the  Legislature  of  the  State  of  Washington: 

Section  1.  That  the  governor  may  appoint  and  commission  as  notaries 
public  as  many  persons  having  the  qualifications  of  electors  as  he  shall 
deem  necc-ssary:  Provided,  That  no  person  shall  be  appointed  a  notary 
public  except  upon  the  petition  of  at  least  twenty  freeholders  of  the 
county  in  which  such  person  resides. 

Sec.  2.  Every  notary  public  shall  be  appointed  for  the  state,  and 
shall  hold  his  office  for  four  years,  unless  sooner  removed  by  the  gov- 
ernor. 

Sec.  3.  Before  a  commission  shall  issue  to  the  person  appointed  he 
shall — (1)  execute  a  bond,  payable  to  the  state  of  Washington,  in  the 
sum  of  one  thousand  dollars,  with  sureties  to  be  approved  by  the  county 
clerk  of  the  county  in  which  the  applicant  resides,  conditioned  for  the 
faithful  discharge  of  the  duties  of  his  office;  (2)  pay  into  the  state 
treasury  the  sum  of  ten  dollars  for  special  state  library  fund,  taking  the 
treasurer's  receipt  therefor;  (3)  procure  a  seal,  on  which  shall  be  en- 
graved the  words  "Notary  Public"  and  "State  of  Washington,"  and  date 
of  expiration  of  his  commission,  with  surname  in  full,  and  at  least  the 
initials  of  bis  Christian  name;  (4)  to  take  and  subscribe  the  oath  of 
office  required  of  state  officers;  (5)  file  the  said  oath  of  office,  bond 
and  treasurer's  receipt  in  the  office  of  the  secretary  of  state,  and  before 
performing  any  official  acts,  shall  file  in  the  office  of  the  secretary  of 
state  a  clear  impression  of  his  official  seal,  which  seal  shall  be  approved 
by  the  governor. 

Sec.  4.  Every  duly  qualified  notary  public  is  authorized  in  any  county 
in  this  state — (1)  to  transact  and  perform  all  matters  and  things  relat- 
ing to  protests,  protesting  bills  of  exchange  and  promissory  notes,  and 
such  other  duties  as  pertain  to  that  office  by  the  custom  and  laws  mer- 
chant; (2)  to  take  acknowledgments  of  all  deeds  and  other  instruments 
of  writing,  and  certify  the  same  in  the  manner  required  by  law;  (3) 
to  take  depositions  and  affidavits,  and  administer  all  oaths  required  by 
law  to  be  administered,  and  every  attorney  at  law  who  is  a  notary  pub- 
lic may  administer  any  oath  to  his  client,  and  no  pleading  or  affidavit 
shall,  on  that  account,  be  held  by  any  court  to  be  improperly  verified. 

Sec.  5.  It  shall  not  be  necessary  for  a  notary  public  in  certifying 
an  oath  to  be  used  in  any  of  the  courts  in  this  state,  to  append  an  im- 
pression of  his  official  seal,  but  in  all  other  cases  when  the  notary  public 
shall  sign  any  instrument  officially,  he  shall,  in  addition  to  his  name  am] 
the  words  "Notary  Public,"  add  his  place  of  residence  and  affix  his 
official  seal. 


30  LAW  FOR  NOTARIES  PUBLIC. 

Sec.  6.  Every  notary  public  is  required  to  keep  a  true  record  of  all 
notices  of  protest  given  or  sent  by  him,  with  the  time  and  manner  in 
which  the  same  were  given  or  sent,  and  the  names  of  all  the  parties  to 
whom  the  same  were  given  or  sent,  with  the  copy  of  the  instrument  in 
relation  to  which  the  notice  is  served,  and  of  the  notice  itself;  said  rec- 
ord, or  a  copy  thereof,  duly  certified  under  the  hand  and  seal  of  the 
notary  public,  or  county  clerk  having  the  custody  of  the  original  record, 
shall  be  competent  evidence  to  prove  the  facts  therein  stated,  but  the 
same  may  be  contradicted  by  other  competent  evidence. 

Sec.  7.  On  the  death,  resignation  or  removal  from  office,  and  at  the 
expiration  of  the  term  of  office  of  any  notary  public,  provided  his  com- 
mission is  not  renewed,  his  records  and  all  his  official  papers  shall,  within 
three  months  therefrom,  be  deposited  in  the  office  of  the  county  clerk  of 
the  county  from  which  such  notary  shall  have  been  appointed,  and  if 
any  notary  public,  on  his  resignation  or  removal  from  office,  shall,  for 
the  space  of  three  months,  neglect  to  so  deposit  his  records,  he  shall 
forfeit  a  sura  not  exceeding  one  thousand  dollars,  to  be  recovered  in  a 
civil  action  by  any  person  injured  by  such  neglect,  and  it  shall  also  be 
the  duty  of  the  executor  or  administrator  of  the  estate  of  any  notary 
public,  deceased,  to  deposit  the  records  and  official  papers  of  such  notary 
with  said  clerk,  and  within  three  months  after  his  appointment  under 
like  penalty. 

Sec.  8.  Every  notary  public  is  entitled  to  demand  and  receive  the 
fees  herein  enumerated :  For  every  protest  of  a  bill  of  exchange  or  prom- 
issory note,  one  dollar;  and  for  each  notice,  twenty  cents;  attesting  any 
instrument  of  writing,  under  seal,  fifty  cents;  noting  a  bill  of  exchange 
or  promissory  note  for  nonacceptance  or  nonpayment,  one  dollar;  for 
each  acknowledgment  of  any  legal  instrument,  fifty  cents  for  the  first 
name  and  twenty-five  cents  for  each  additional  name;  registering  protest 
of  a  bill  of  exchange  or  promissory  note,  seventy-five  cents;  certifying 
an  affidavit,  and  all  other  certificates  under  seal,  fifty  cents;  each  oath 
or  affirmation,  without  seal,  twenty-five  cents;  being  present  at  demand, 
tender  or  deposit,  and  noting  the  same,  besides  mileage  at  ten  cents  per 
mile,  fifty  cents;  for  any  instrument  of  writing,  or  depositions  or  affi- 
davits written,  exclusive  of  the  certificate  thereto,  drawn  by  a  notary 
public,  for  each  hundred  words,  twenty-five  cents. 

Sec.  9.  After  the  delivery  of  a  commission  to  a  notary  public,  ap- 
pointed and  qualified  as  heretofore  provided,  the  secretary  of  state  shall 
make  a  certificate  of  such  appointment,  with  the  date  of  said  commis- 
sion, and  file  the  same  in  the  office  of  the  county  clerk  of  the  county 
where  such  notary  resides,  who  shall  file  and  preserve  the  same,  and  it 
shall  be  deemed  sufficient  evidence  to  enable  such  clerk  to  certify  that 
the  person  so  commissioned  is  a  notary  public  during  the  time  such  com- 
mission is  in 'force. 

Sec.  10.  The  county  clerk  of  the  county  in  which  such  notary  re- 
sides, or  the  secretary  of  state,  may  grant  certificates  of  official  char- 


NOTARIAL  LAWS.  31 

acter  of  notaries  public.  The  certificate  of  the  clerk  shall  be  under  his 
hand  and  official  seal,  and  that  of  the  secretary  of  state,  under  the  seal 
of  the  state.  The  fee  for  such  certificates  shall  be  one  dollar,  and  shall 
be  paid  by  the  county  clerks  into  the  treasury  of  their  respective  coun- 
ties, and  by  the  secretary  of  state  into  the  state  -treasury. 

Sec.  11.  All  appointments  of  notaries  public  made  in  pursuance  of 
the  kws  of  the  territory  of  Washington,  that  do  not  sooner  expire, 
shall  expire  on  the  first  day  of  April,  A.  D.  1890:  Provided,  That  there 
shall  be  deducted  from  the  fee  of  ten  dollars  herein  provided  for,  such 
proportion  of  said  fee  as  the  unexpired  time  in  the  territorial  appoint- 
ment bears  to  the  whole  term  for  which  the  original  commission  was 
issued. 

Sec.  12.  The  seals  now  in  use  by  notaries  public  in  this  state,  being 
the  seals  authorized  under  the  laws  of  Washington  territory,  shall  con- 
tinue to  be  the  seals  of  such  officers  until  the  expiration  of  their  offices, 
as  provided  for  in  section  11  of  this  act,  and  all  notarial  acts  of  such 
officers,  which  have  been  or  may  be  authenticated  by  such  seals,  shall  be 
held  good  and  valid  as  if  done  and  performed  under  this  act.  And  all 
official  acts  done  since  the  admission  of  the  state  of  Washington  into 
the  Union,  by  notaries  public  of  the  late  territory  of  Washington,  the 
terms  of  whose  appointments  had  not,  at  the  time  of  doing  such  acts, 
expired  by  the  limitation  of  time  expressed  in  the  statutes  of  said  terri- 
tory, are  hereby  declared  to  be  valid  under  the  same  circumstances,  and 
to  the  same  extent,  as  if  done  before  the  admission  of  the  said  state  into 
the  Union. 

Sec.  13.  All  laws  and  acts  in  conflict  with  this  act  are  hereby  re- 
pealed. 

Sec.  14.  Great  embarrassment,  inconvenience  and  uncertainty  in  com- 
mercial and  legal  business,  and  in  transfers  of  property  will  arise  from 
delay  of  the  time  when  this  act  shall  take  effect;  and  therefore,  it  shall 
take  effect  from  the  date  of  its  approval  by  the  governor. 

Approved  December  21,  1889. 

NOTAEIES  PUBLIC;  BELIEF  OF. 
An  Act  for  the  Belief  of  Certain  Notaries  Public. 

Whereas,  The  legislature  of  the  state  of  Washington  passed  an  act, 
approved  December  21,  1889,  providing  for  the  appointment,  qualification 
and  duties  of  notaries  public;  and 

Whereas,  Certain  notaries  public  holding  territorial  commissions  have 
failed  to  receive  deductions  due  them  in  accordance  with  the  provisions 
of  section  11  of  said  act;  therefore, 

Be  it  enacted  by  the  Legislature  of  the  State  of  Washington: 

Section  1.  That  the  treasurer  of  state  be  and  hereby  is  instructed  to 
issue  certificates  for  the  amount  due  to  each  notary  public  entitled  to 
such  rebate;  that  the  auditor  of  state  be  and  hereby  is  instructed  to 


32  LAW  FOB  NOTARIES  PUBLIC. 

draw  warrants  on  the  state  treasurer  for  such  sums,  and  that  the  state 
treasurer  is  hereby  instructed  to  pay  such  sums  out  of  the  state  library 
fund. 

Sec.  2.  For  the  purpose  of  carrying  into  effect  the  provisions  of  this 
act,  there  is  hereby  appropriated  out  of  the  state  library  fund  the  sum 
of  two  hundred  dollars,  or  so  much  thereof  as  may  be  necessary. 

Approved  March  2Z,  1890. 

CHAPTER  CXXX. 

Fees  of  State  and  County  OflBlcers,  Witnesses  and  Jurors. 

An  Act  in  Relation  to  the  Fees  of  State  and  County  Officers,  Witnesses 
and  Jurors,  and  Amending  Section  2086  of  the  Code  of  Washing- 
ton of  1881. 

Be  it  enacted  by  the  Legislature  of  the  State  of  Washington: 

Section  1.  Section  2086  of  the  Code  of  Washington  of  1881,  is  hereby 
amended  to  read  as  follows:  "Section  2086.  The  several  officers  herein- 
after enumerated  shall  be  entitled  to  collect  the  fees  hereinafter  pro- 
vided for  their  official  services,  to  wit: 

Notaries  Public. 

1.  Protest  of  a  bill  of  exchange  of  [or]  promissory  note,  one  dollar. 

2.  Attesting  any  instrument  of  writing,  with  seal,  fifty  cents. 

3.  Taking  acknowledgment,  two  persons,  with  seal,  fifty  cents. 

4.  Taking  acknowledgment,  each  person,  over  two,  fifteen  cents. 

5.  Certifying  affidavit,  without  seal,  twenty-five  cents. 

6.  Certifying  affidavit,  with  seal,  fifty  cents. 

7.  Registering  protest  of  bill  of  exchange  or  promissory  note  for  non- 
aceeptancb  or  nonpayment,  fifty  cents. 

8.  Being  present  at  demand,  tender  or  deposit,  and  noting  the  same, 
besides  mileage  at  the  rate  of  ten  cents  per  mile,  fifty  cents. 

9.  Noting  a  bill  of  exchange  or  promissory  note  for  nonacceptance  or 
nonpayment,  fifty  cents. 

10.  For  copying  any  instrument  of  record,  besides  certificate  and  seal, 
per  folio,  fifteen  cents. 

Approved  March  15,  1893. 

CHAPTER  151. 

Relative  to  Fees  of  State  and  County  Officers,  Witnesses  and  Jurors. 

An  Act  in  Relation  to  the  Fees  of  State  and  County  Officers,  Witnesses 
and  Jurors,  and  Repealing  an  Act  Entitled  "An  Act  in  Relation  to 
the  Fees  of  State  and  County  Officers,  Witnesses  and  Jurors  and 
Amending  Section  2086  of  the  Code  of  Washington  of  1881,"  the 
Same  Being  Approved  March  15,  1893. 

Be  it  enacted  hy  the  Legislature  of  the  State  of  Washington: 
Section  1.     The  several  officers  herein   named  shall  collect  the  fees 
herein  prescribed  for  their  official  services: 


NOTARIAL  LAWS.  33 

Notaries  Public. 

1.  Protest  of  a  bill  of  exchange  of  (or)  promissory  note,  one  dollar. 

2.  Attesting  any  instrument  of  writing  with  or  without  seal,  fifty 
cents. 

3.  Taking  acknowledgment,  two  persons,  with  seal,  fifty  cents. 

4.  Taking  acknowledgment,  each  person  over  two,  twenty-five  cents. 

5.  Certifying  affidavit,  with  or  without  seal,  fifty  cents. 

6.  Registering  protest  of  bill  of  exchange  or  promissory  note  for  non- 
acceptance  or  nonpayment,  fifty  cents. 

7.  Being  present  at  demand,  tender  or  deposit,  and  noting  the  same, 
besides  mileage  at  the  rate  of  ten  cents  per  mile,  fifty  cents. 

8.  Noting  a  bill  of  exchange  or  promissory  note,  for  nonacceptance 
or  nonpayment,  fifty  cents. 

9.  For  copying  any  instrument  or  record,  besides  certificate  and  seal, 
per  folio,  fifteen  cents. 

Approved  March  16,  1903. 

CHAPTER  137. 

Notaries  Public. 

An  Act  to  Amend  [Pierce's  Code,  §  6798]  an  Act  Entitled,  "An  Act  to 
Provide  for  the  Appointment,  Qualification  and  Duties  of  Notaries 
Public,  Certifying  Their  Official  Acts  and  Declaring  an  Emergency 
to  Exist,"  Approved  December  21st,  1889. 

Be  it  enacted  by  the  Legislature  of  the  State  of  Washington: 

Section  1.  That  section  1  of  said  act  [Pierce's  Code,  §  6798]  be 
amended  to  read  as  follows:  Section  1.  The  act  to  provide  for  the  ap- 
pointment, qualification  and  duties  of  notaries  public,  certifying  their 
official  acts  and  declaring  an  emergency  to  exist,  approved  December 
21st,  1890,  is  hereby  amended  by  adding  to  section  one  (1)  of  said  act 
a  proviso  so  that  when  so  amended  said  section  shall  read  as  follows: 
Section  1.  That  the  governor  may  appoint  and  commission  as  notaries 
public  as  many  persons  having  the  qualifications  of  electors  as  he  shall 
deem  necessary:  Provided,  That  no  person  shall  be  appointed  a  notary 
public  except  upon  the  petition  of  at  least  twenty  freeholders  of  the 
county  in  which  such  person  resides :  Provided,  further,  That  women  over 
the  age  of  twenty-one  years  resident  within  this  state  and  of  good 
moral  character  may  be  appointed. 

Approved  by  the  governor  March  12,  1907. 


34  LAW  FOE  NOTARIES  PUBLIC. 

CHAPTER  56. 

Relative  to  Fees  of  State  and  County  Ofl&cers,  Witnesses  and  Jurora. 

Be  it  enacted  by  the  Legislature  of  the  State  of  Washington: 

Section  1.    The  several  officers  herein  named  shall  collect  the  fees 
herein  prescribed  for  their  official  services: 

Fees  of  Secretary  of  State. 
2.  For  any  certificate  under  seal  of  state,  two  dollars. 

Notaries  Public. 

1.  Protest  of  a  bill  of  exchange  or  promissory  note,  one  dollar. 

2.  Attesting   any  instrument  of  writing   with   or  without  seal,  fifty 
cents. 

3.  Taking  acknowledgment,  two  persons,  with  seal,  fifty  cents. 

4.  Taking  acknowledgment,  each  person  over  two,  twenty-five  cents. 

5.  Certifying  affidavit,  with  or  without  seal,  fifty  cents. 

6.  Registering  protest  of  bill  of  exchange  or  promissory  note  for  non- 
acceptance  or  nonpayment,  fifty  cents. 

7.  Being  present  at  demand,  tender  or  deposit,  and  noting  the  same, 
besides  mileage  at  the  rate  of  ten  cents  per  mile,  fifty  cents. 

8.  Noting  a  bill  of  exchange  or  promissory  note,  for  nonacceptance  or 
nonpayment,  fifty  cents. 

9.  For  copying  any  instrument  or  record,  besides  certificate  and  seal 
per  folio,  fifteen  cents. 

Approved  by  the  governor  March  2,  1907. 


NOTAEY  PUBLIC:  APPOINTMENT,  ETC.  35 


CHAPTER  III. 

THE  NOTAEY  PUBLIC:  APPOINTMENT,  ETC. 

§    9.  Purpose  of  the  Oflace  of  Notary. 

§  10.  Definition. 

§  11.  Nature  of  the  Office :  A  Public  Officer. 

§  12.  Judicial  or  Ministerial  Office. 

§  13.  Eligibility  and  Qualifications:  Electors:  Women. 

§  14.  :  Incompatible  Offices. 

§  15.  Appointment:  In  General. 

§  16.  :  Steps  to  be  Taken  by  the  Applicant. 

§  17.  Term  of  Office. 

§  18.  Oath  of  Office. 

§  19.  The  Notary's  Bond. 

§  20.  The  Fee  to  the  State. 

§  21.  Seal :  Notary  must  Procure. 

§  22.  :  Sufficiency :  How  Determined. 

§  23.  Notary's  Commission. 

§  24.  Jurisdiction. 

§  9.  Purpose  of  the  OflSce  of  Notary. — Possibly  the  best 
way  to  appreciate  the  need  and  purpose  of  the  office  of 
notary  public  would  be  to  imagine  a  state  with  no  officers 
empowered  to  administer  an  oath  outside  of  court.  Then,  if 
one  should  want  to  prove  that  he  presented  a  note  for  pay- 
ment on  a  certain  day,  at  the  proper  time  and  place,  he 
would  be  compelled  to  hale  two  or  three  persons  to  court  to 
prove  that  fact.  If  those  persons  were  a  thousand  miles 
away  when  the  case  came  on  for  trial,  he  would  be  compelled 
to  get  them  to  court  notwithstanding  the  expense;  if  they 
had  died  in  the  meantime,  he  would  not  be  able  to  prove  his 
case.  If  at  the  present  day  a  plaintiff  or  defendant  in  a  ease 
on  trial  were  compelled  to  bring  into  court  witnesses  to 
prove  the  thousand  and  one  things  that  are  now  accepted  in 
the  form  of  affidavits,  the  business  world  would  be  paralyzed 
to  a  great  extent.  Every  time  a  business  man  takes  a  note 
for  an  ordinary  amount  he  would  know  that  if  it  were  not 
paid  at  the  proper  time  he  might  as  well  destroy  the  note, 
for  it  would  cost  him  as  much  to  prove  the  debt  as  he 
would  recover.    And  again,  suppose  every  time  a  deed  were 


36  LAW  FOR  NOTARIES  PUBLIC. 

placed  on  record  it  would  be  necessary  for  the  grantor 
to  appear  at  the  auditor's  office  with  some  friend  who 
knows  the  auditor  personally,  to  prove  to  him  that  he  is 
the  man  who  is  granting  the  land  and  not  an  imposter. 
One  can  readily  see  that  real  property  owners  living  out 
of  the  state,  or,  we  might  say,  out  of  the  county,  would 
make  one  trip  to  the  auditor's  office,  transfer  their  land, 
and  be  careful  not  to  buy  any  more  in  a  foreign  state  or 
county.  Thousands  of  affidavits  and  acknowledgments  are 
taken  in  Washington  every  year  to  be  used  in  all  parts  of 
the  world.  So  it  can  be  seen  that  a  public  officer  who  is  em- 
powered to  administer  oaths  and  can  thereafter  attach  his 
name  to  facts  sworn  to  before  him,  thus  making  what  we 
term  "affidavits,"  is  a  very  necessary  official  both  in  the 
business  world  and  in  the  legal  world.  And  the  more  com- 
plex our  civilization  becomes  the  more  necessary  is  such  an 
officer. 

§  10.  Definition. — ^A  notary  public*  is  a  public  officer 
whose  function  it  is  to  attest  and  certify,  by  his  hand  and 
official  seal,  certain  classes  of  instruments  in  order  to  give 
them  credit  and  authenticity  in  foreign  jurisdictions;  to  take 
acknowledgments  of  deeds  and  other  conveyances,  and  to 
certify  the  same ;  to  perform  certain  official  acts,  in  commer- 
cial matters,  such  as  the  protesting  of  notes  and  bills,  and 
the  noting  of  foreign  drafts;  to  receive  the  affidavits  of 
mariners  and  to  draw  up  protests  in  cases  of  loss  or  damage ; 
and  to  perform  other  official  acts,  the  power  to  do  which  is 
conferred  by  law.^ 

1  The  word  "notary"  is  equiva-  Dec.  722.  "A  public  officer  whose 
lent  to  the  words  "notary  public":  function  it  is  to  attest  and  cer- 
29  Cyc.  Law  &  Proc,  p.  1068;  Va.  tify,  by  his  hand  and  official 
Code  (1904),  §5;  W.  Va.  Code  seal,  certain  classes  of  documents 
(1906),  §  293.  in  order  to  give  them  credit  and 

2  Bouv.  Law  Diet.  (Eawle's  authenticity  in  foreign  jurisdie- 
Rev.),  tit.  "Notary  Public";  21  tions":  Gharst  v.  St.  Louis  Tran- 
Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  sit  Co.,  115  Mo.  App.  403,  408, 
p.  555;  29  Cyc.  Law  &  Proc,  p.  91  S.  W.  453. 

1009;     Black's     Lew     Diet.,     tit.  "An  officer  whose  duty  it  is  to 

"Notary  Public";  Kirksey  v.  attest  the  genuineness  of  any 
Bates,  7  Port.  (Ala.)  529,  31  Am.      deeds  or  writings  in  order  to  ron- 


NOTARY  PUBLIC:  APPOINTMENT,  ETC.  37 

From  this  definition  it  is  seen  that  a  notary  is  a  public  offi- 
cial whose  signature  on  certain  documents  carries  more 
weight  than  that  of  the  ordinary  man.  He  is  appointed  by 
the  state  for  the  purpose  of  assisting  anyone  who  wants  his 
assistance  in  proving  that  certain  facts  were  sworn  to.  He 
is  a  public  functionary  authorized  to  put  his  name  to  certain 
documents  to  show  that  they  are  genuine.  When  he  "at- 
tests" he  witnesses  or  sees,  as  an  officer,  that  a  person  named 
in  the  document  swears  before  God  that  certain  facts  set 
forth  in  the  document  are  true;  when  he  "certifies"  to  that 
instrument  he  writes  on  the  same  instrument  that  the  person 
named  therein  did  appear  before  him  on  a  certain  day  and  at 
a  certain  place  and  did  there  swear  before  God  that  the  facts 
stated  therein  are  true.  When  he  "takes  an  acknowledg- 
ment," the  man  named  in  a  deed  or  other  conveyance  comes 
to  him  with  the  deed  and  tells  him  that  he  is  the  man  named 
as  grantor  in  the  deed,  that  he  signed  the  deed  and  means  to 
convey  the  property  to  the  person  named  therein;  when  he 
"certifies  the  same,"  he  writes  on  the  deed  these  facts,  that 
he  knows  the  man  named  in  the  deed  and  that  the  said  man 
did  sign  it  and  means  to  convey  it.  When  he  "protests,"  he 
writes  down  how  and  when  he  performed  certain  acts  which 
he  is  called  upon  to  perform  as  such  public  official;  for  ex- 
ample, that  he,  at  the  request  of  X,  called  upon  A,  at  his  home 
at  9  o'clock  Tuesday,  September  6,  1910,  and  asked  A  to  pay 
a  certain  note ;  that  A  refused  to  pay  the  note  but  gave  no 
reason  for  said  refusal,  and  that  he  thereupon  notified  cer- 
tain specified  parties  of  the  fact.  After  writing  on  these 
various  instruments  the  facts  which  took  place  before  his 
eyes,  the  notary  places  his  seal,  which  is  an  impression  in  the 
paper  which  cannot  be  changed,  to  further  prove  that  the 

der    them    available    as    evidence  ized   to   receive   all  acts  and  con- 

of  the  facts  therein  contained":  tracts  to  which  parties  wish  to 

Nolan   V.   Labatut,   117   La.   431,  give  the  character  of  authentic- 

445,   41    South.    713;    Schmitt    v.  ity,  attached  to  the  acts  of  public 

Dronet,  42  La.  Ann.  1064,  1066,  8  authority,    to    secure    their    date. 

South.  396,  21  Am.  St.  Eep.  408.  their  preservation  and  the  deliv- 

See,  also,  Bowen  v.  Stilwell,  9  N.  ery  of  copies":  Nolan  v.  Labatut, 

Y.  Civ.  Proc.  277,  283.  117  La.  431,  445,  41  South.  713;  5 

"A   public   functionary,    author-  Diet.  Droit  Civ.,  p.  27. 


38  LAW  FOB  NOTARIES  PUBLIC. 

acts  were  done  before  him,  a  public  officer,  authorized  by  the 
state  to  have  a  seal.  These  facts  as  set  forth  by  the  notary 
are  then  accepted  as  true  without  further  proof. 

In  "Washington  every  duly  qualified  notary  public  is  au- 
thorized to  transact  and  perform  all  matters  and  things 
relating  to  protests,  protesting  bills  of  exchange  and  promis- 
sory notes,  and  such  other  duties  as  pertain  to  that  office  by 
the  custom  and  laws  merchant ;  to  take  acknowledgments  of 
all  deeds  and  other  instruments  of  writing,  and  certify  the 
same  in  the  manner  required  by  law;  to  take  depositions  and 
affidavits,  and  administer  all  oaths  required  by  law  to  be  ad- 
ministered, [a] 

[a]  The  Washington  statute  (Laws  1890,  p.  474,  §  4;  1  H.  C,  §  232; 
Bal.  Code,  §  248;  2  Rem,  &  Bal.  Code,  §  8298)    is  as  follows: 

"Every  duly  qualified  notary  is  authorized  in  any  county  in  this 
state — 

"1.  To  transact  and  perform  all  matters  and  things  relating  to  pro- 
tests, protesting  bills  of  exchange  and  promissory  notes,  and  such 
other  duties  as  pertain  to  that  oflEtce  by  the  custom  and  laws  mer- 
chant; 

"2.  To  take  acknowledgments  of  all  deeds  and  other  instruments 
of  writing,  and  certify  the  same  in  the  manner  required  by  law; 

"3.  To  take  depositions  and  affidavits,  and  administer  all  oaths  re- 
quired by  law  to  be  administered;  and  every  attorney  at  law  who  is 
a  notary  public  may  administer  any  oath  to  his  client,  and  no  plead- 
ing or  affidavit  shall,  on  that  account,  be  held  by  any  court  to  be  im- 
properly verified." 

§  11.  Nature  of  the  Office:  A  Public  Officer.— The  office 
of  notary  public  is  a  public  office,^  although  in  some  states 
the  notaries'  powers  may  be  confined  to  acts  performed  in  a 
certain  city  or  county.  The  court  in  Golladay  v.  Union 
Bank,2  a  Tennessee  case,  said:  "The  notary  is  a  public  offi- 

1  29  Cyc.  Law  &  Proc,  p.  1069;  68  N.  E.  65;  Britton  v.  Niccolls, 
21.  Am.  &  Eng.  Ency.  of  Law,  2d  104  U.  S.  757,  26  L.  ed.  917;  Bett- 
ed., p.  555;  Governor  v.  Gordon,  man  v.  Warwick,  108  Fed.  46,  47 
15  Ala.  72;  Ashcraft  v.  Chapman,  CCA.  185;  Gervais  v.  McCarthy, 
38  Conn.  230;  Ohio  Nat.  Bank  v.  35  Can.  Sup.  Ct.  14;  Choquette  v. 
Hopkins,  8  App.  Cas.  (D.  C)  146;  McDonald,  19  Quebec  Super,  Ct. 
Opinion    of    Justices,    150    Mass.  408. 

586,  23  N.  E.  830,  6  L.  R.  A.  842;  2  2  Head  (Tenn.),  57,  59. 
People  V.  Wadhams,  176  N.  Y.  9, 


NOTARY  PUBLIC:   APPOINTMENT,  ETC.  39 

cer,  and  when  he  certifies  that  he  has  done  an  ofiBcial  act,  it 
must  be  presumed  that  he  has  done  it  correctly,  unless  some 
statute  or  rule  of  law  prescribes  a  particular  mode,  until  the 
contrary  appears."  In  Ashcraft  v.  Chapman,'  a  Connecticut 
judge  said:  "Notaries  were  originally  mere  commercial 
scriveners.  Becoming  important  to  the  commercial  world, 
their  appointment  was  provided  for  and  their  duties  reg- 
ulated by  public  law,  and  they  became  sworn  public  officers — 
notaries  public — and  their  certificates  were  received  as  evi- 
dence of  their  official  acts."  The  title  itself  expresses  this 
fact,  for  they  are  notaries — public.  It  is  a  public  office 
within  the  meaning  of  the  New  York  constitution,  which 
prohibits  public  officers  from  accepting  passes  on  railroads 
and  other  franking  privileges;*  and  though  the  question  as 
to  a  notary  has  never  been  before  the  courts  of  this  state, 
he,  without  doubt,  is  a  public  officer  within  the  meaning  of 
the  Washington  constitution  forbidding  the  issue  of  passes 
and  tickets  sold  at  a  discount  to  public  officers,  [a]  [b]  ^^ 
There  is  no  question  as  to  a  notary  public  being  a  public 
officer  in  Washington,  for  the  words  of  the  statute  are  "every 
notary  shall  be  appointed  for  the  state,  "[c]  A 

[a]  The  Washington  constitution  (art.  11,  §  39)  is  as  follows: 

"It  shall  not  be  lawful  for  any  person  holding  public  office  in  this 
state  to  accept  or  use  a  pass  or  to  purchase  transportation  from  any 
railroad  or  other  corporation,  other  than  as  the  same  may  be  pur- 
chased by  the  general  public,  and  the  legislature  shall  pass  laws  to 
enforce  this  provision." 

[b]  The  Washington  constitution  (art,  13,  §  20)  is  as  follows: 
"No    railroad    or    other    transportation    company    shall    grant    free 

passes,  or  sell  tickets  or  passes  at  a  discount,  other  than  as  sold  to 
the  public  generally,  to  any  member  of  the  legislature,  or  to  any  per- 
son holding  any  public  office  within  this  state.  The  legislature  shall 
pass  laws  to  carry  this  provision  into  effect." 

[c]  The  Washington  statute  (Laws  1890,  p.  473,  §  2;  1  H.  C,  §  330; 
Bal.  Code,  §246;  2  Eem.  &  Bal.  Code,  8296)  is  as  follows: 

"Every  notary  public  shall  be  appointed  for  the  state,  and  shall 
hold  his  office  for  four  years,  unless  sooner  removed  by  the  governor." 

8  38  Conn.  230.  People  v.  Bathbone,  145  N.  Y.  434, 

4  N.    Y.    Const.,    art.    13,    §5;      40  N.  E.  395,  28  L.  E.  A.  384. 


40  LAW  FOB  NOTARIES  PUBLIC. 

§  12.  Judicial  or  Ministerial  Office. — ^An  important  ques- 
tion which  presents  itself  in  the  discussion  of  the  law  of 
notaries  is  whether  a  notary  is  a  judicial  or  ministerial  offi- 
cer. The  point  has  arisen  mainly  in  the  consideration  of 
the  questions  of  the  territorial  jurisdiction  of  the  officer,  his 
disqualifications  by  reason  of  interest  in  the  matter,  his 
power  to  amend  a  defective  certificate  of  acknowledgment, 
and  the  effect  of  the  certificate  as  evidence.  The  weight 
of  authority  seems  to  be  in  favor  of  the  view  that  the  acts 
of  a  notary  are  ministerial  and  not  judicial.^  And  while 
the  cases  cannot  be  taken  as  laying  down  the  rule  in  regard 
to  all  the  functions  of  a  notary,  still  we  may  safely  say  that 
cases  decided  in  Washington  place  this  state  with  the  major- 
ity. The  cases  are,  Nixon  v.  Post,  13  Wash.  184,  43  Pac.  23 
(December,  1895) ;  The  Spokane  &  Idaho  Lumber  Co.  v. 
Loy,  21  Wash.  501,  58  Pac.  672,  60  Pac.  1119  (October,  1899) ; 
Keene  Guaranty  Savings  Bank  v.  Lawrence,  32  Wash,  576, 
73  Pac.  680  (September,  1903) ;  and  McLean  v.  Roller,  33 
Wash.  166,  73  Pac,  1123  (October,  1903).  In  the  Post  case 
the  husband  took  the  acknowledgment  of  the  grantor  to  a 
deed  in  which  his  wife  was  the  grantee;  it  was  held  to  be 
a  good  acknowledgment.  In  the  Loy  case,  Mr,  Justice 
Anders  said:  "The  substance  of  the  affidavit  of  the  sureties 
in  such  bonds  is  prescribed  by  law,  and  the  act  of  the  notary 
in  administering  the  oath  is  purely  ministerial,  and  is  not 
affected  by  his  interest  therein,"  In  the  Lawrence  case, 
the  court  said:  **The  mere  fact  that  the  notary  in  this  case 
was  an  officer  and  stockholder  in  the  corporation,  to  whom 
the  mortgage  was  executed,  would  not  preclude  his  taking 
the  acknowledgment  of  the  mortgagor.  The  taking  of  an 
acknowledgment  by  a  notary  public  is  a  ministerial  act,  and 
may  be  performed  by  anyone  qualified  to  act  as  notary." 
In  the  Roller  case  it  appears  that  the  principal  in  an  appeal 
bond,  as  notary  public,  took  the  affidavit  of  the  sureties  at- 
tached to  the  bond,  and  for  that  reason,  and  on  that  ground, 
the  respondent  moved  to  dismiss  the  appeal.     Mr.  Justice 

1  See  §32;  21  Am.  &Eng.  Ency.  p..  485;  29  Cyc.  Law  &  Proc, 
of  Law,  2d  ed.,  p.  556,  and  voL  1,      p.  1070. 


NOTARY  PUBLIC:  APPOINTMENT,  ETC.  41 

Anders  quoted  the  hoy  case,  and  denied  the  motion  to  dis- 
miss the  appeal. 

A  ministerial  act  may  be  defined  to  be  one  which  a  person 
performs  upon  a  given  state  of  facts,  in  a  prescribed  manner, 
in  obedience  to  the  mandate  of  legal  authority,  without  re- 
gard to  or  the  exercise  of  his  own  judgment  upon  the  pro- 
priety of  doing  the  act.^  In  State  v.  Womack,  4  Wash.  27 
(March,  1892),  Mr.  Justice  Dunbar  defines  a  ministerial 
office  as  follows:  "A  ministerial  office,  as  defined  by  Bou- 
vier,  is  one  which  gives  the  officer  no  power  and  no  charge 
of  the  matter  to  be  determined,  but  requires  him  to  obey  the 
mandates  of  the  superior. '  * 

§  13.  Eligibility  and  Qualifications :  Electors :  Women. — 
The  question  as  to  who  can  be  notaries  public  is  generally 
answered  by  the  constitution  or  statutes  of  a  state.  In 
Washington  we  find  both  by  the  constitution  [a]  and  stat- 
utes that  they  must  have  the  qualifications  of  electors;  but 
that  women  over  the  age  of  twenty-one  years  resident  with- 
in this  state  and  of  good  moral  character  may  be  appointed.^ 
[b]  The  statute  seems  to  assume  that  an  ''elector"  is  a 
man  of  good  moral  character.  From  the  Law  of  1901,  page 
284,  section  1,  defining  electors,  we  find  that  to  be  qualified 
for  appointment  as  notary  a  person  must  be  a  male  person 
twenty-one  years  of  age,  able  to  read  and  speak  the  English 
language,  and  must  be  a  citizen  of  the  United  States  who  has 


2  Am.  &  Eng.  Ency.  of  Law 
2d  ed.,  p.  793;  Bouv,  Law  Diet 
(Kawle's  Rev.),  tit.  "Minister 
ial";  American  Casualty  Ins.  etc, 
Co,  V.  Fyler,  60  Conn.  448,  25  Am 
St.  Eep.  337,  22  Atl.  494;  Flour 
noy  V.  Jefifersonville,  17  Ind.  169 
79  Am.  Dec.  468;  School  Dist.  No 
2  V.  Lambert,  28  Or.  209,  42  Pac 
221;  Patterson  v.  Portland  Smelt 
ing  Works,  35  Or.  96,  56  Pac.  407 

In   People   v.   Battels,    138    111 


the  taking  of  an  acknowledgment 
is  a  judicial  act  had  its  origin  in 
the  consideration  of  acknowledg- 
ments by  married  women,  where 
the  oflBcer  is  required  to  make  th« 
privy  examination  herein  referred 
to;  and,  as  applied  to  such  cases, 
the  doctrine  is  sound."  In  this 
state  at  the  present  time  a  wife 
is  not  examined  privately  by  the 
notary;  therefore  the  doctrine 
would  not  apply. 


322,  17  N.  E.  1091,  Chief  .Justice  i  As   women   are   now   electors 

Magruder  said:  "The  doctrine  that      in  "Washington,  they  are  eligible 


42  LAW  FOB  NOTARIES  PUBLIC. 

lived  in  the  state  one  year  and  in  the  county  ninety  days,  [e] 
Under  the  Washington  statute,  therefore,  neither  an  alien 
nor  a  minor  could  be  appointed.^ 

[a]  The  Washington  constitution  (art.  3,  §  25)  is  as  follows: 

"No  person  except  a*  citizen  of  the  United  States  and  a  qualified 
elector  of  this  state  shall  be  eligible  to  hold  any  state  ofl&ce,  and  .  .  .  ." 

[b]  The  Washington  statute  (Laws  1907,  p.  264,  §  1;  Bal.  Code, 
§245;  2  Eem.  &  Bal.  Code,  §  8295)  is  as  follows: 

"The  governor  may  appoint  and  commission,  as  notaries  public,  as 
many  persons  having  the  qualifications  of  electors  as  he  shall  deem 
necessary:  Provided,  that  no  person  shall  be  appointed  a  notary 
public  except  upon  the  petition  of  at  least  twenty  freeholders  of  the 
county  in  which  such  person  resides:  Provided  further,  that  women 
over  the  age  of  twenty-one  years  resident  within  this  state  and  of 
good  moral  character  may  be  appointed." 

[c]  The  Washington  statute  as  to  qualified  electors  (Laws  1901, 
p.  284,  §  1;  Bal.  Code,  §  1320*;  2  Eem.  &  Bal.  Code,  §  4752)  is  as  fol- 
lows: 

"All  male  persons  over  the  age  of  twenty-one  years,  possessing 
the  following  qualifications  shall  be  entitled  to  vote  at  all  elections: 
All  persons  who  at  the  time  of  the  taking  effect  of  this  act  are  quali- 
fied electors  of  this  state;  all  other  male  persons  who  are  over  the 
age  of  twenty-one  years,  citizens  of  the  United  States  who  have 
lived  in  the  state  one  year  and  in  the  county  ninety  days  and  in  the 
city,  town,  ward  or  precinct  thirty  days  immediately  preceding  the 
election  at  which  they  offer  to  vote,  and  who  shall  be  able  to  read 
and  speak  the  English  language:  Provided,  that  Indians  not  taxed 
shall  never  be  allowed  the  elective  franchise." 

§  14.  Eligibility  and  Qualifications :  Incompatible  Offices. 
By  reasbn  of  constitutional  provisions  and  state  statutes,  a 
number  of  cases  have  been  decided  in  various  states  to  the 
effect  that  a  notary  public  cannot  at  the  same  time  hold  some 

to   the   office   under   the   general  de  facto:  See  §§  42,  43.    A  woman 

designation  of  electors.  is  ineligible  to  the  office  of  notary 

But,  question:  Was  the  law  of  public  under  Ohio  Const.,  art.  15, 

1907    (note    [b])    as    to    the    ap-  §4,  requiring  an  officer  to  be  an 

pointment     of     women     constitu-  elector,   and   art.   5,  §  1,    requiring 

tional   in   view   of   art.   3,  §  25    of  an  elector  to   be   a  male   citizen : 

the    constitution    (note    [a])    and  State  ex  rel.  Monnett  v.  Adams, 

the    law    of    1901  (note  [c])?     In  58  Ohio  St.  612,  51  N.  E.  135. 
the  event  that  it  was  unconstitu-  2  Wilson   v.    Kimmel,    109   Mo. 

tional     women     appointed    under  260,  19  S.  W.  24. 
that  law  were   and  are   notaries 


NOTAEY  PUBLIC:  APPOINTMENT,  ETC.  43 

other  office.  In  Washington  there  is  neither  a  provision  in 
the  constitution  nor  a  statute  on  the  subject.  The  natural 
conclusion  is  that  a  notary  might  at  the  same  time  be  a  jus- 
tice of  the  peace  or  county  clerk  or  a  town  official.^ 

§  16.  Appointment:  In  General. — ^In  the  states  one  must 
always  go  to  the  constitution  and  the  statutes  of  the  state 
in  question  to  learn  how  notaries  are  appointed,  [a]  As  a 
general  thing,  they  are  appointed  by  the  governor,  some- 
times with  the  consent  of  the  senate  or  an  advisory  coun- 
cil.^ In  "Washington  the  governor  may  appoint  and  com- 
mission as  many  persons  as  he  shall  deem  necessary,  but 
before  he  is  allowed  to  make  such  appointment  the  person 
must  file  a  petition  signed  by  at  least  twenty  freeholders  of 
the  county  in  which  he  resides  recommending  his  appoint- 
ment, [a]  It  might  be  well  to  add  in  this  connection  that 
if  an  appointment  is  not  made  in  the  mode  prescribed  by  the 
constitution  or  statute  it  is  inoperative.^ 

[a]  For  the  law  as  to  appointment  in  Washington,  see  note  [b], 
§13. 

§  16.    Appointment :  Steps  to  be  Taken  by  the  Applicant. 

The  present  law  as  to  the  appointment  of  a  notary  is  some- 
what confusing ;  and  it  may  be  of  assistance  to  some  to  have 
the  steps  set  out  in  their  order.  It  will  be  noticed  that  in 
certain  steps  the  letters  or  instruments  should  be  addressed 

3  In    state    v.    Clark,    21    Nev.  were  incompatible,  and  that  when 

333,  37  Am.  St.  Eep.  517,  31  Pac.  a  notary  was  elected  county  clerk 

545,  18  L.  E.  A.  313,  it  was  held  and  qualified  as  such,  his  office  as 

that   the   office   of   notary  public  notary  was   thereby   determined: 

is    a    "civil    office,"    within    the  See,  also,  Building  etc.  Assn.  v. 

meaning  of  the  constitutional  pro-  Sohn,   54   W.   Va.    101,   46   S.   E. 

vision   that   no   person   holding   a  222;  Com.  v.  Shindle,  19  Pa.  Co. 

lucrative  office  under  the  govern-  Ct.  258;  Merzbach  v.  New  York, 

ment  of  the  United  States  or  any  163  N.  Y.  16,  57  N.  E.  96. 

other  power  shall  be  eligible  to  i  21  Am.  &  Eng.  Ency.  of  Law, 

any    civil    office   of   profit    under  2d  ed.,  p.  556. 

this  state,  2  Brown  v.  State,  43  Tex.  478; 

In  Biencourt  t.  Parker,  27  Tex.  29  Cyc.  Law  &  Proc,  p.  67;   21 

558,  it  was  held  that  the  offices  of  Am.  &  Eng.  Ency.  of  Law,  2d  ed., 

notary   public    and   county   clerk  p.  557. 


44  LAW  FOB  NOTARIES  PUBLIC. 

to  the  governor,  and  in  others  they  should  be  addressed  to 
the  secretary  of  state.  The  "secretary  to  the  governor" 
has  charge  of  the  correspondence  in  this  matter,  and  all 
the  governor's  letters  should  be  addressed  to  him  instead 
of  to  the  governor. 

The  steps  are  as  follows: 

The  applicant  should  write  a  letter  to  the  "secretary 
to  the  governor"  asking  for  an  application  blank  for  ap- 
pointment as  a  notary  public.  The  letter  should  state 
whether  it  is  for  a  renewal  or  for  a  new  appointment;  it 
should  state  also  whether  the  applicant  is  a  female. 

The  applicant  will  receive  the  blank  petition  as  set  out 
in  note  [a],  page  46,  if  for  a  new  appointment  or  one  some- 
what different  if  for  a  renewal.  A  few  words  are  changed  if 
the  applicant  is  a  female. 

Applicant  should  then  fill  out  the  petition  with  county, 
name  and  date,  and  then  have  it  signed  in  ink  by  twenty 
(20)  freeholders  of  the  said  county.  A  freeholder  is  one 
entitled  to  real  estate  irrespective  of  the  amount  of  interest 
therein.^    Any  elector  who  owns  real  estate  may  sign. 

The  petition  should  then  be  mailed  to  the  "secretary 
to  the  governor,"  together  with  a  postal  or  express  money 
order  for  ten  dollars  ($10)  payable  to  the  "state  treasurer." 
A  check  will  not  be  accepted. 

If  the  application  is  acceptable  to  the  governor,  he  will 
make  the  appointment  and  file  the  notice  of  appointment 
with  the  state  department. 

The  secretary  of  state  will  then  mail  the  applicant  a 
bond  corresponding  in  number  with  notice  of  appointment, 
and  a  letter  telling  him  of  his  appointment  and  setting  forth 
what  steps  to  take  with  the  bond  and  seal.  (For  copy  of 
the  bond,  see  page  49.  The  letter  of  instructions  is  set 
out  in  note  [b],  page  46.  No  other  bond  will  be  accepted; 
the  applicant  must  use  the  bond  sent  him.  The  official  bond, 
furnished  by  the  secretary  of  state,  contains  oath  of  office 
and  all  necessary  data  for  approval  by  county  clerk,  etc..  and 
may  be  executed  either  as  a  personal  or  surety  bond. 

1  People  V.  Scott,  8  Hun  (N.  Y.),  567;  People  v.  Hjnds,  30  N.  T. 
472. 


NOTARY  PUBLIC:   APPOINTMENT,  ETC.  45 

The  applicant  should  then  procure  a  seal  containing 
the  following: 

(1)  Name  of  the  applicant.  The  name  must  be  in  the 
same  form  that  it  appears  on  the  application  blank;  that 
will  be  the  same  as  it  appears  in  the  letter  of  instructions, 
note  [b]. 

(2)  The  words  "Notary  Public." 

(3)  The  words  "State  of  Washington.'* 

(4)  The  date  of  the  expiration  of  the  applicant's  com- 
mission as  a  notary:  "Commission  Expires  September  30, 
1914."  This  date  will  appear  in  the  letter  of  instructions, 
note  [b],  and  also  in  the  body  of  bond.  (See  page  52,  for 
form  of  seal.) 

Applicant  should  not  order  a  seal  until  he  gets  the  letter 
of  instructions  setting  forth  the  date  of  the  expiration  of 
his  commission,  which  will  be  four  years  from  date  of  ap- 
pointment. 

The  bond  should  then  be  executed  and  approved  by 
the  county  clerk  of  the  applicant's  county.  Care  should  be 
taken  that  the  notary,  county  clerk  or  officer  before  whom 
the  acknowledgment  is  taken  affixes  his  seal.  An  impression 
of  the  applicant's  seal  must  be  affixed  in  the  place  indicated 
so  that  it  may  be  approved  by  the  governor.  Applicants 
should  be  careful  to  always  give  street  number,  or  office 
building,  as  many  bonds  are  returned  for  want  of  that  in- 
formation. The  applicant's  name  should  be  written  in  the 
bond  and  oath  of  office,  and  should  be  in  the  seal  in  the 
same  form  it  is  written  in  the  application  blank,  which  will 
be  the  same  form  in  which  it  appears  in  the  letter  of  in- 
structions. That  means  that  if  the  applicant  intends  to 
sign  his  name  John  B.  Doe,  it  should  be  in  that  form  always, 
and  not  J.  B.  Doe  in  the  bond  and  J.  Doe  in  the  seal. 

The  bond  should  then  be  sent  to  the  "secretary  to  the 
governor."  The  governor  will  approve  the  seal  and  for- 
ward the  applicant  his  commission.  The  bond  is  then  filed 
with  the  secretary  of  state,  who  notifies  the  county  clerk 
of  the  applicant's  county  of  his  appointment.  This  is  done 
so  that  the  notary  can  thereafter  obtain  certificates  of  au- 
thenticity at  the  clerk's  office.    The  secretary  of  state  also 


46  LAW  FOB  NOTAKIES  PUBLIC. 

can  certify  to  the  oflficial  status  of  any  regularly  appointed 
notary.    The  fee  for  such  certificate  is  two  dollars. 

[a]  POEM  I. 

To  the  Governor  of  Washington: 

We,  the  undersigned  freeholders  of  King  county,  state  of  Washing- 
ton, hereby  certify  that  we  are  well  acquainted  with  John  Doe,  that 
he  is  a  reputable  citizen  of  said  county;  that  he  is  an  elector  of  the 
state  of  Washington,  and  we  hereby  recommend  him  to  the  goremor 
as  a  proper  person  to  receive  appointment  as  notary  public. 

Dated  at  Seattle,  this  10th  day  of  September,  1910. 

1 11 

2 12 

3 13 

4 14 

5 15 

6 16 

7 17 

8 18 

9 19 

10 .20 

Note — This  petition  should  be  signed,  in  ink,  by  twenty  freeholders  of 
the  county  in  which  the  applicant  resides. 

[b]  ,  , 

Secbetaey  of  State.  Asst.  Sec'y  of  State. 

STATE  OP  WASHINGTON". 
DEPARTMENT  OP  STATE. 

Olympia,  Sept.  30,  1910. 
John  Doe  Esq., 

Sir:  You  have  been  appointed,  by  the  governor,  a  notary  public  in 
and  for  the  state  of  Washington,  for  a  term  of  four  years  from  date  of 
appointment. 

Please  execute  the  inclosed  bond,  have  it  approved  by  the  clerk  of 
your  county,  and  forward  same  to  the  governor.  The  governor  will 
approve  the  impression  of  your  seal,  if  same  is  correct,  and  forward 
the  commission.  See  that  the  notary,  county  clerk  or  officer  before 
whom  the  acknowledgment  is  taken  does  not  fail  to  impress  his  seal. 
You  must  procure  a  seal  on  which  must  be  engraved  the  words  "Notary 
Public"  and  "State  of  Washington,"  and  the  date  of  the  expiration  of 
your  commission,  which  will  be  September  30,  1914,  with  your  name 
as  same  apx^ears  in  your  petition  for  appointment,  which  is  as  herein* 


NOTAEY  PUBLIC:   APPOINTMENT,  ETC.  47 

before  written.     AflSx   an  impression  of   your   seal  in   the  place   indi- 
cated, so  that  it  may  be  approved  by  the  governor. 

Very  respectfully, 


Secretary  of  State. 
Eetum  Your  Bond  to  the  Governor — Do  not  Send  to  This  Office. 

§  17,  Term  of  Office. — The  state  statutes  always  set  forth 
the  time  for  which  the  notary  shall  be  appointed.^  In  Wash- 
ington the  statute  says  that  he  shall  hold  his  office  for  four 
years,  unless  sooner  removed  by  the  governor,  [a]  If,  after 
his  four  year  term  has  elapsed  and  he  has  not  been  reap- 
pointed, he  would  continue  to  act  as  notary,  he  would  then 
be  a  notary  de  facto — that  is,  a  notary  actually  exercising 
the  powers,  although  not  legally  capable  of  exercising  such 
powers.  "While  he  might  be  subjecting  himself  to  a  fine  or 
penalty  for  such  acts,  his  notarial  acts  as  to  the  public  and 
third  persons  are  valid  and  cannot  be  attacked  collater- 
ally .2  [b] 

[a]  The  Washington  statute  (Laws  1890,  p.  473,  §  2;  1  H,  C,  §  330; 
Bal.  Code,  §  246;  2  Eem.  &  Bal.  Code,  §  8296)  is  as  follows: 

"Every  notary  public  shall  be  appointed  for  the  state,  and  shall  hold 
his  of&ce  for  four  years,  unless  sooner  removed  by  the  governor." 

[b]  In  Bullene  v.  Garrison,  1  Wash.  Ter.,  p.  589  (July,  1878),  Mr. 
Justice  Greene  said:  "The  evidence  shows  that  Plummer  was  exercising 
the  functions  of  a  notary,  and  publicly  assuming  to  be  such.  His  oath 
of  office,  official  bond  and  notarial  seal  were  aU  on  file  in  the  executive 
office  of  the  territory.  He  was  at  least  an  officer  de  facto,  and  his  right 
to  the  office  could  not  be  tried  in  this  suit." 

§  18.  Oath  of  Office. — In  nearly  every  state  the  notary  is 
required  to  take  and  subscribe  an  oath  of  office.^  In  Wash- 
ington the  statute  says,  that  before  a  commission  shall  issue 
to  the  person  appointed  he  shall  take  and  subscribe  the  oath 
of  office  required  of  state  officers,  [a]  The  oath  reads  as 
follows:  "I  do  solemnly  swear  [or  affirm]  that  I  will  sup- 
port the  constitution  of  the  United  States  and  the  constitu- 
tion and  laws  of  the  state  of  Washington,  and  that  I  will 

1  29  Cyc.  Law  &  Proc,  p.  1073.        3  21  Am.  &  Eng.  Ency.  of  Law, 

2  See  note  Ij  see  §§  42,  43.  2d  ed.,  p.  558. 


48  LAW  FOB  NOTARIES  PUBLIC. 

faithfully  discharge  the  duties  of  the  office  of  notary  public 
to  the  best  of  my  ability,  "[b] 

[a]  The  Washington  statute  (Laws  1890,  p.  473;  §  3 ;  1  H.  C,  §  331 ; 
Bal.  Code,  §  247;  2  Rem.  &  Bal.  Code,  §  8297)  is  as  follows: 

"Before  a  commission  shall  issue  to  the  person  appointed,  he  shall — 
"4.  Take  and  subscribe  the  oath  of  office  required  of  state  officers." 

[b]  The  Washington  statute  setting  forth  the  oath  for  state  officers 
(Laws  1909,  p,  70,  §  1;  2  Rem.  &  Bal.  Code,  §  8987)  is  as  follows: 

"The  governor,  lieutenant-governor,  secretary  of  state,  treasurer,  audi- 
tor, attorney  general,  superintendent  of  public  instruction,  commissioner 
of  public  lands  and  insurance  commissioner  of  the  state  of  Washington, 
shall,  before  entering  upon  the  duties  of  their  respective  offices,  take  and 
subscribe  an  oath  or  affirmation  in  substance  as  follows:  I  do  solemnly 
swear  [or  affirm]  that  I  will  support  the  constitution  of  the  United  States 
and  the  constitution  and  laws  of  the  state  of  Washington,  and  that  I  will 
faithfully  discharge  the  duties  of  the  office  of  [name  of  office]  te  the 
best  of  my  ability " 

§  19.  The  Notary's  Bond. — By  statute  in  nearly  all  of  the 
states,  the  notary  is  required,  before  assuming  the  duties  of 
office,  to  give  a  bond  for  the  faithful  performance  of  the 
duties  of  his  office.^  In  "Washington  he  must  execute  a  bond, 
payable  to  the  state  of  Washington,^  in  the  sum  of  one 
thousand  dollars,  with  sureties  to  be  approved  by  the  county 
clerk  of  the  county  in  which  the  applicant  resides,  condi- 
tioned for  the  faithful  discharge  of  the  duties  of  his  of- 
fice.^ [a]  The  bond  once  approved  and  filed  can  be  canceled 
only  when  the  office  is  vacated.* 

1  21  Am.  &  Eng.  Ency.  of  Law,  »  Under  a  statute  which  pre- 
2d  ed.,  p.  557.  scribed  no  condition  for  the  no- 

2  Where  the  statute  provided  tarial  bond,  but  declared  that  a 
that  the  notary's  bond  should  be  notary  should  be  liable  on  his 
made  payable  to  "the  state  of  bond  for  any  misconduct  or 
California,"  a  bond  made  payable  neglect  of  duty,  it  was  held  that 
to  "the  people  of  the  state  of  the  only  condition  that  should  be 
California"  was  held  good:  Tevis  inserted  in  such  bond  was  the 
V.  Randall,  6  Cal.  632,  65  Am.  faithful  performance  of  duty: 
Dec.  547.  A  bond  without  a  seal  Tevis  v.  Randall,  6  Cal.  632,  65 
is  held  not  to  be  a  notary's  bond  Am.  Dec.  547. 

within  the  meaning  of  the  stat-  ■*  Rochereau   v.   Jones,   29   La. 

ute:  Van  de  Casteele  V.Cornwall,     Ann.  82. 
5  CaL  419. 


NOTARY  PUBLIC:  APPOINTMENT,  ETC.  49 

[a]  The  Washington  statute  (Laws  1890,  p.  473,  §3;  1  H.  C,  §331; 
Bal.  Code,  §  247;  2  Eem.  &  Bal.  Code,  §  8297)  is  as  follows: 

"Before  a  commission  shall  issue  to  the  person  appointed,  he  shall — 
1,  Execute  a  bond  payable  to  the  state  of  Washington  in  the  sum  of 
one  thousand  dollars  with  sureties  to  be  approved  by  the  county  clerk 
of  the  county  in  which  the  applicant  resides  conditioned  for  the  faithful 
discharge  of  the  duties  of  his  office." 

The  form  of  bond  used  in  this  connection  is  the  following : 

FOEM  n 
OFFICIAL  BOND. 

FBOM  OFFICE  OT 

SECRET AEY  OF  STATE. 
Know  All  Men  by  These  Presents: 

That  we,  John  Doe,  of  Seattle,  King  county,  state  of  Washington,  as 
principal,  and  John  Stiles  and  Frank  Smith,  of  the  same  county  and  state, 
as  sureties,  are  held  and  firmly  bound  unto  the  state  of  Washington  in  the 
full  penal  sum  of  one  thousand  dollars,  lawful  money  of  the  United 
States,  for  the  payment  of  which  well  and  truly  to  be  made,  we,  and  each 
of  us  bind  ourselves,  our,  and  each  of  our  heirs,  executors  and  administra- 
tors, jointly  and  severally,  fijanly  by  these  presents. 

Sealed  with  our  seals  and  dated  this  1st  day  of  December,  A.  D.  1910. 

The  condition  of  the  above  obligation  is  such  that — 

Whereas,  the  above-bounden  principal  has  been  appointed  by  the 
governor  of  the  state  of  Washington  a  notary  public,  in  and  for  the 
state  of  Washington,  for  the  term  ending  September  30,  1914,  under  and 
by  virtue  of  an  act  of  the  legislature  of  the  state  of  Washington,  ap- 
proved December  21,  1889. 

Now,  Therefore,  if  the  said  principal  shall  faithfully  discharge  the 
duties  of  his  said  office  according  to  law  and  shall  faithfully  discharge 
the  duties  of  his  said  office  according  to  any  laws  which  may  be  enacted 
subsequent  to  the  execution  hereof,  then  this  obligation  shall  be  void; 
otherwise  to  be  and  remain  in  full  force  and  effect. 

JOHN  DOE.  [Seal] 

JOHN  STILES.        [Seal] 
FEANK   SMITH.     [Seal] 
In  Presence  of 

HENRY  JONES. 
WILLIAM  JAMES, 

(Two  witnesses  required)] 
4 


50  LAW  FOE  NOTARIES  PUBLIC. 

State  of  "Washington, 
County  of  King, — ss. 

John  Stiles,  being  first  duly  sworn  on  oath,  deposes  and  says:  That 
he  is  one  of  the  sureties  on  the  foregoing  obligation;  that  he  is  a  resi- 
dent of  said  county  and  state,  and  is,  and  was  at  the  time  of  the  execu- 
tion of  the  foregoing  obligation,  a  freeholder  within  the  said  state  of 
Washington;  that  he  is  worth  the  sum  of  two  thousand  dollars  over 
and  above  all  his  debts  and  liabilities,  in  separate  property,  situated 
within  the  said  state  of  Washington^  which  is  not  exempt  from  sale  on 
execution. 

JOHN  STILES. 

Subscribed  and  sworn  to  before  me  this  1st  day  of  December,  A.  D. 
1910. 

[Seal  of  Daniel  Noe]  DANIEL  NOE, 

Notary  Public  in  and  for  the  State  of  Washington, 

Besiding  at  Seattle. 

State  of  Washington, 
County  of  King, — ss. 

Frank  Smith,  being  first  duly  sworn  on  oath,  deposes  and  says:  That 
he  is  one  of  the  sureties  on  the  foregoing  obligation;  that  he  is  a  resi- 
dent of  said  county  and  state,  and  is,  and  was  at  the  time  of  the  execu- 
tion of  the  foregoing  obligation,  a  freeholder  within  the  said  state  of 
Washington;  that  he  is  worth  the  sum  of  two  thousand  dollars  over  and 
above  all  his  debts  and  liabilities,  in  separate  property,  situated  within 
the  said  State  of  Washington,  which  is  not  exempt  from  sale  on  execu- 
tion. 

FBANK  SMITH. 

Subscribed  and  sworn  to  before  me  this  1st  day  of  December,  A.  D. 
1910. 

[Seal  of  Daniel  Noe]  DANIEL  NOE, 

Notary  Public  in  and  for  the  State  of  Washington, 

Besiding  at  Seattle. 

State  of  Washington, 
County  of  King, — ss. 

Be  it  remembered,  that  on  this  1st  day  of  December,  A.  D.  1910,  be- 
fore me,  the  undersigned,  a  notary  public  in  and  for  the  state  of  Wash- 
ington, personally  appeared  John  Doe,  John  Stiles  and  Frank  Smith, 
all  personally  known  to  me  to  be  the  persons  described  in,  and  who 
executed  the  foregoing  obligation,  and  they  each  acknowledged  to  mo 
that  they  signed  the  same  freely  a!nd  voluntarily  for  the  uses  and 
purposes  therein  expressed. 


NOTARY  PUBLIC:  APPOINTMENT,  ETC.  51 

In  -witness  whereof,   I  have  hereunto   set  my  hand   and   affixed  my 
official  seal  the  day  and  year  last  above  written, 

[Seal  of  Daniel  Noe]  DANIEL  NOE, 

Notary  Public  ia  and  for  the  State  of  Washington, 

Besiding  at  Seattle. 
Bond  approved ,  A.  D.  19 


County  Clerk. 
(County  Clerk's  seal  here) 

•  ■  County, 

Washington. 

(To  the  county  clerk:  See  that  all  blanks  in  this  bond  are  filled  before 
approving.) 

State  of  Washington, 
County  of  King, — ss. 

I,  John  Doe,  do  solemnly  swear  that  I  will  support  the  constitution  of 
the  United  States  and  the  constitution  and  laws  of  the  state  of  Wash- 
ington, and  that  I  will  faithfully  and  impartially  discharge  the  duties 
of  notary  public.     So  help  me  God. 

JOHN  DOE. 

Subscribed  and  sworn  to  before  me  this  1st  day  of  December,  A.  D. 
1910. 

[Seal  of  Daniel  Noe]  DANIEL  NOE, 

Notary  Public  in  and  for  the  State  of  Washington, 

Residing  at  Seattle. 
Seal  approved. 

(Place  impression  of  seal  here  for  approval  by  the  Governor.) 


Governor. 

If  the  applicant  desires,  he  may  have  a  surety  company 
go  on  his  bond  in  place  of  two  freeholders. 

§  20.  The  Fee  to  the  State. — In  most  of  the  states  the  ap- 
plicant for  the  office  of  notary  is  required  by  law  to  pay  to 
some  officer  of  the  state  a  fee  for  his  commission.  In  Wash- 
ington he  must  pay  into  the  state  treasury  the  sum  of  ten 
dollars,  whereupon  he  gets  the  treasurer's  receipt  therefor, 
which  is  a  very  necessary  paper  to  file  with  his  bond,  oath 
of  office  and  an  impression  of  his  seal,  [a] 

[a]  The  Washington  statute  (Laws  1890,  p.  473,  §3;  1  H.  C,  §331; 
Bal.  Code,  §  247;  2  Bem.  &  Bal.  Code,  §  8297)  is  as  follows: 


52  LAW  FOB  NOTARIES  PUBLIC. 

"Before  a  commission  shall  issue  to  the  person  appointed,  he  shall — 
2.  Pay  into  the  state  treasury  the  sum  of  ten  dollars  for  special  state 
library  fund,  taking  the  treasurer's  receipt  therefor." 

§  21.  Seal:  Notary  must  Procure. — The  requirement  that 
a  notary  must  have  a  seal  is  a  very  old  one.  Although  we 
find  that  a  seal  was  not  necessary  under  the  civil  law,^  un- 
der the  common  law  it  was.^  Most  of  the  states  now  have 
statutes  setting  forth  the  requisites  of  the  notarial  seal.  In 
Washington  the  seal  must  be  engraved  with  the  words  "No- 
tary Public,"  and  "State  of  Washington,"  the  notary's 
surname  in  full  and  at  least  the  initials  of  his  Christian 
name,  together  with  the  date  of  the  expiration  of  his  com- 
mission. Here  is  a  good  form  for  a  seal,  both  as  to  its  size 
and  also  as  to  the  arrangement  of  the  lettering: 


The  seal  must  be  one  that  the  governor  will  approve  of, 
and  a  clear  impression  must  be  filed  in  the  office  of  the 
secretary  of  state  before  the  notary  performs  any  official 
acts,  [a] 

By  section  1778  of  the  Revised  Statutes  of  the  United 
States  [b]  the  notary  must  attach  an  impression  of  his  seal 
to  all  oaths,  acknowledgments  and  affidavits. 

[a]  The  Washington  statute  (Laws  1890,  p.  473,  §  3;  1  H.  C,  §  331; 
Bal.  Code,  §  247;  2  Rem.  &  Bal.  Code,  §  8297)  is  as  follows: 

"Before  a  commission  shall  issue  to  the  person  appointed,  he  shall, — 
3.  Procure  a  seal,  on  which  shall  be  engraved  the  words  'Notary  Pub- 
lic' and  'State  of  Washington,'  and  date  of  expiration  of  his  commission, 

1  Orr    V.  Lacy,  4  McLean   (U.  2  Orr  v.  Lacy,  4  McLean    (U. 

S.),  243,    Fed.    Cas.   No.   10,589;  S.),   243;    Fed.    Cas.    No.    10,589; 

Flamming  v.  Richardson,  13  La.  Opinion    of    Justices,  150    Mass. 

Ann.    414;    Rochester     Bank    v.  586,   23   N.   E.    850,   6   L.   E.   A. 

Gray,  2  Hill  (N.  Y.),  227.  842. 


NOTARY  PUBLIC:   APPOINTMENT,  ETC.  53 

with  surname  in  full,  and  at  least  the  initials  of  Ms  Christian  name; 
5.  And  before  performing  any  official  acts,  shall  file  in  the  office  of  the 
secretary  of  state  a  clear  impression  of  his  official  seal,  which  seal  shall 
be  approved  by  the  governor." 

[b]  See  page  73. 

§  22.  Seal:  Sufficiency:  How  Determined. — There  are  so 
many  different  kinds  of  seals — for  example,  an  impression 
made  in  the  paper;  a  piece  of  pap^r  pasted  on;  a  scroll 

made  with  a  pen  or  pencil  C         5  ;  a  piece  of  ribbon  pasted 


O 


on ;  a  printed  square   I  L .  S.     >  *^®  printed  or  written  letters 


L.  S. ;  *  an  impression  made  on  wax  or  other  adhesive  sub- 
stance; the  word  "SEAL  " — that  the  question  naturally 
arises,  How  are  the  requisites  of  the  notarial  seal  to  be  deter- 
mined? Then,  too,  what  one  state  demands  to  be  engraved 
on  the  notary's  seal  may  be  very  different  from  that  re- 
quired by  another  state.  For  example,  Washington  de- 
mands that  the  date  of  the  expiration  of  the  commission 
show  in  the  impression,  while  that  is  not  required  in  many 
states.  The  question  is  answered  by  saying  that  the  requi- 
sites of  the  notarial  seal  are  to  be  determined  by  the  laws  of 
the  state  from  which  the  notary  derives  his  authority.^  In 
Washington  the  statute  on  the  subject  of  what  must  be  en- 
graved on  the  seal  is  mandatory,  and  must  be  followed  in 
every  detail.'  Where  a  notarial  seal  is  required,  one  which 
is  not  notarial  is  ineffective.  An  interesting  case  of  mistake 
showing  the  importance  of  the  seal  itself  and  that  the  mere 
intention  to  use  the  notary's  seal  was  insufficient  is  that  of 
McKellar  v.  Peck,  39  Tex.  381,  where,  under  a  statute  de- 

1  "L.  S."  stand  for  the  Latin  Lean  (U.  S.),  243,  Fed.  Gas.  No. 
words,  locus  sigilli,  meaning  the  10,589;  Crowley  t.  Barry,  4  Gill 
place  of  the  seal:  2  Bouv.  Law       (Md.),    194. 

Diet.  (Eawle's  Eev.),  p.  274.  3  21    Am.    &    Eng.    Ency.    of 

2  21  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  p.  559;  Laws  1890, 
Law,  2d  ed.,  p.  559;  In  re  Phil-  p.  473,  §  3;  1  H.  C,  §331;  Bal. 
Hps,  19  Fed.  Cas.  No.  11,098,  14  Code,  §  247;  2  Eem.  &  Bal.  Code, 
N.  B.  E.  219;  Orr  v.  Lacy,  4  Mc-  §  8297. 


54  LAW  FOB  NOTARIES  PUBLIC. 

daring  that  no  oflScial  act  should  be  valid  without  the  no- 
tary's seal  of  office,  it  was  held  that  an  acknowledgment  to 
which  the  notary  inadvertently  affixed  the  seal  of  the  county 
court  was  invalid. 

§  23.  Notary's  Commission. — After  having  executed  his 
bond  in  the  sum  of  one  thousand  dollars,  paid  the  state 
treasurer  ten  dollars,  procured  a  seal  acceptable  to  the  gov- 
ernor, taken  and  subscribed  the  oath  of  office,  and  filed  the 
said  bond,  treasurer's  receipt,  impression  of  his  seal  and 
oath  of  office  with  the  secretary  of  state,  the  said  secretary 
sends  the  applicant  his  commission,  [a]  He  is  then  a  duly 
qualified  notary  public  and  authorized  to  perform  all  acts 
which  he  may  perform  according  to  the  laws  of  Washing- 
ton, the  laws  of  the  different  states  of  the  United  States,  or 
the  laws  of  any  foreign  country.  His  commission  reads  as 
follows : 

"THE  STATE  OF  WASHINGTON. 

,  Governor. 

"To  All  to  Whom  These  Presents  Shall  Come,  Greeting: 

"EJiow  ye,  That  John  Doe,  having  been  appointed  a  notary 
public  for  the  state  of  Washington,  and  having  duly  quali- 
fied according  to  law:  Now,  therefore,  I  do  authorize  and 
empower  him  to  execute  and  fulfill  the  duties  of  that  office 
according  to  law,  with  all  the  powers,  privileges  and  emolu- 
ments thereunto  of  right  appertaining  unto  him,  for  the 
term  of  four  years  ending  the  twenty-ninth  day  of  April, 
A.  D.  1912,  unless  his  appointment  be  sooner  revoked  by 
the  governor  of  the  state  of  Washington,  In  testimony 
whereof  I  have  hereunto  set  my  hand  and  caused  the  seal  of 
said  state  to  be  affixed  at  Olympia,  this  7th  day  of  May, 
A.  D.,  one  thousand  nine  hundred  and  eight." 

It  is  signed  by  the  governor  and  secretary  of  state  and  the 
great  seal  of  the  state  is  attached. 

In  1899  a  question  seems  to  have  arisen  as  to  whose  legal 
duty  it  is  to  do  or  have  done  the  clerical  work  involved  in 
the  preparation  of  a  commission.  The  governor,  John  R. 
Rogers,  attempted  by  mandamus  proceedings  to  compel  the 


NOTARY  PUBLIC:  APPOINTMENT,  ETC.  55 

secretary  of  state,  Will  D.  Jenkins,  to  fill  out  and  present  to 
the  governor,  for  his  signature,  a  commission  to  a  person 
named  in  the  application,  who  was  entitled  to  be  commis- 
sioned a  notary  public  under  title  4,  chapter  4,  of  Ballinger's 
Code.  The  supreme  court  refused  to  issue  a  writ  of  man- 
damus. The  court  said:  "As  the  only  authority  to  issue 
commissions  is  vested  in  the  governor,  and  as  there  is  no 
provision,  either  in  the  constitution  or  statutes,  requiring 
the  particular  work  here  in  question  to  be  done  by  the  sec- 
retary, and  as  the  writ  of  mandate  only  issues  to  compel 
the  performance  of  some  duty  specially  enjoined  by  law,  it 
follows  that  the  application  in  the  present  instance  must  be 
denied. "  * 

[a]  "Commissions,  How  Issued. — All  commissions  shall  issue  in  the 
name  of  the  state,  shall  be  signed  by  the  governor,  sealed  with  the  seal 
of  the  state,  and  attested  by  the  secretary  of  state":  Wash.  Const.,  art. 
3,  §  15. 

For  other  Washington  statutes,  see  notes  [a]  and  [b]  under  four  pre- 
ceding sections. 

§  24.  Jurisdiction. — The  question  as  to  where  a  notary 
can  take  an. affidavit  or  acknowledgment  or  administer  an 
oath  is  a  very  important  one.  In  many  states,  while  ap- 
pointed by  the  governor  he  can  act  only  within  the  confines 
of  his  own  county;  in  others  he  is  appointed  for  the  state.^ 
From  1854  to  1857,  Washington  notaries  were  county  of- 
ficers; from  1857  to  1862  they  were  officers  of  the  judicial 
district  to  which  they  belonged;  from  1862  to  1875  they 
were  state  officers;  from  1875  to  1883  they  were  county  of- 
ficers;^ since  1883  they  may  exercise  their  functions  any- 
where in  the  state  of  Washington,  but  not  beyond  the  limits 

3  The   State  of  Washington   on  Law,  2d  ed.,  p.  558;  29  Cyc.  Law 

the   Eelation   of   John  R.   Eogers,  &  Proc,  p.  1090. 
Governor,    v.    Will    D.    Jenkins,  2  Laws     1854,    p.     444;     Laws 

Secretary  of  State,  21  Wash.  364,  1857,   p.   30;    Laws   1862,   p.    52; 

58  Pac.  217.  Laws    1875,   p.    118;    Laws    1883, 

1  21    Am.     &     Eng.    Ency.     of  p.  87;  Laws  1890,  p.  473. 


56  LAW  FOE  NOTARIES  PUBLIC. 

of  the  state,^    The  statute  in  Washington  says  "every  no- 
tary public  shall  be  appointed  for  the  state. "[a] 

[a]  The  Washington  statute  (Laws  1890,  p.  473,  §  2;  1  H.  C,  §  330; 
Bal.  Code,  §  246;  2  Rem.  &  Bal.  Code,  §  8296)  is  as  follows: 

"Every  notary  shall  be  appointed  for  the  state  and  shall  hold  his  oflB.ce 
for  four  years,  unless  sooner  removed  by  the  governor." 

»  Harris  v.  Burton,  4  Harr.    X^e^').  ^^' 


NOTARY  PUBLIC:  FUNCTIONS  AND  POWERS.  57 


CHAPTER  IV. 

THE  NOTAEY  PUBLIC:  FUNCTIONS  AND  POWEES. 

6  25.  Functions  and  Powers:  Plan. 

§  26.  Under  International  Law. 

§  27.  Under  the  Law-merchant. 

§  28.  Under  Federal  Statutes. 

§  29.  Under  the  Laws  of  Other  States. 

§  30.  Under  the  Laws  of  Washington. 

§  25.  Functions  and  Powers :  Plan. — ^The  powers  which  a 
notary  of  this  state  may  exercise  will  be  considered  under 
five  heads:  First,  his  powers  under  international  law;  sec- 
ondly, his  powers  under  the  law-merchant;  thirdly,  his 
powers  as  set  forth  in  the  statutes  of  the  United  States; 
fourthly,  his  powers  under  the  laws  of  other  states;  and, 
fifthly,  his  powers  as  they  are  specified  by  the  laws  of  Wash- 
ington. 

§  26.    Functions  and  Powers :  Under  International  Law. — 

The  powers  of  a  notary  public  of  the  state  of  "Washington 
under  international  law  may  be  said  to  be  the  drawing  up 
of  any  affidavit,  the  taking  of  any  acknowledgment,  the 
drawing  up  of  any  marine  protest,  the  taking  of  depositions 
or  the  administering  an  oath  or  affirmation  to  a  subject  of 
a  foreign  country  or  to  a  subject  of  this  country,  which  said 
instrument  is  intended  to  be  put  in  evidence  in  the  courts 
of  or  used  in  any  manner  in  some  foreign  nation.  If  the 
document  so  to  be  used  is  one  other  than  a  protest  of  a  bill 
of  exchange,  the  signature  of  the  notary  should  be  authenti- 
cated, first,  by  the  clerk  of  the  county  in  which  he  resides 
or  by  the  secretary  of  state,^  [a]  [b]  and,  later,  by  the  consul, 
minister  or  representative  of  the  foreign  country  to  which  it 
is  to  be  sent.  In  Merchants'  Express  Co.  v.  Morton,  15 
Grant  Ch.  274,  it  was  held  "that  by  statute  an  affidavit 
sworn  in  the  United  States  before  a  notary  public  and  hav- 
ing the  signature  and  official  seal  of  the  notary  as  the  offi- 

1  Bouv.  Law  IMct.  (Eawle'a  Eev.),  tit.  "Notary  Public";  29  Cyc. 
Law  &  Proc,  p.  1078. 


58  LAW  FOB  NOTARIES  PUBLIC. 

cial  administering  the  oath  was  receivable  without  proof 
aliunde  in  the  courts  of  Upper  Canada.  "^  It  will  be  noted 
that  in  this  case  the  affidavit  without  any  authentication  of 
the  notary's  powers  was  received  by  reason  of  a  statute.  It 
is  always  better  form  and  safer  practice  to  attach  the  county 
clerk's  certificate  and  also  the  certificate  of  a  consul.  For 
example,  in  Re  Earle  Trust,  4  Kay  &  J.  300,  70  Eng.  Reprint, 
126,  it  was  held  that  the  official  seal  of  a  notary  public  of 
a  country  not  under  the  dominion  of  the  British  sovereign 
was  one  of  which  the  court  could  not  take  judicial  notice ; 
that  an  affidavit  could  not  be  admitted  in  evidence  by  virtue 
of  such  seal  unverified,^  A  complete  affidavit  ready  to  be 
mailed  to  a  party  in  England  is  here  given: 

[a]  The  Washington  statute  giving  a  county  clerk  the  power  to 
issue  such  certificate  of  authentication  (Laws  1890,  p.  475,  §  9;  1  H.  C, 
§  337;  Bal.  Code,  §  253;  2  Eem.  &  Bal.  Code,  §  8303)  is  as  follows: 

"After  the  delivery  of  a  commission  to  a  notary  public,  appointed 
and  qualified  as  heretofore  provided,  the  secretary  of  state  shall  make 
a  certificate  of  such  appointment,  with  the  date  of  said  commission, 
and  file  the  same  in  the  oflJce  of  the  county  clerk  of  the  county  where 
such  notary  resides,  who  shall  file  and  preserve  the  same,  and  it  shall 
be  deemed  suflBcient  evidence  to  enable  such  clerk  to  certify  that  the 
person  so  commissioned  is  a  notary  public  during  the  time  such  com- 
mission is  in  force." 

[b]  The  Wasihington  statute  as  to  the  issue  of  certificates  of  the 
official  character  of  a  notary  (Laws  1890,  p.  476,  §  10;  1  H.  C,  §  338; 
Bal.  Code,  §  254;  2  Rem.  &  Bal.  Code,  §  8304)  is  as  follows: 

"The  county  clerk  of  the  county  in  which  such  notary  resides,  or 
the  secretary  of  state,  may  grant  certificates  of  official  character  of 
notaries  public.  The  certificate  of  the  clerk  shall  be  under  his  hand 
and  official  seal,  and  that  of  the  secretary  of  state  under  the  seal  of 
the  state.  The  fee  for  such  certificates  shall  be  one  dollar,  and  shall 
be  paid  by  county  clerks  into  the  treasury  of  their  respective  coun- 
ties, and  by  the  secretary  of  state  into  the  state  treasury." 

2  29  Cyc.  Law  &  Proc,  p.  under  the  official  seal  of  the 
1078.  latter,    might    be   filed  with    the 

3  In.  the  following  English  clerk  of  the  record  of  writs:  In 
cases  it  was  held  that  an  affi-  re  Davis,  L.  R.  8  Eq.  98;  Haggitt 
davit  taken  before  a  notary,  v.  Iniff,  5  De  Gex,  M.  &  G.  910, 
whose  official  character  was  duly  43  Eng.  Reprint,  1124. 
authenticated  by  certificate  of  In  Chicot  v.  Lequesne,  Dick, 
the  British  consul  of  New  York  150,    21    Eng.    Reprint,     228,    an 


NOTARY  PUBLIC:  FUNCTIONS  AND  POWERS.  59 

FORM  III. 
United  States  of  America. 

State  of  Washington, 
County  of  King, — ss. 

This  is  to  certify  that  on  the  tenth  day  of  June,  in  the 
year  1905,  A.  D.,  I,  John  Stiles,  now  of  Seattle,  King  County, 
Washington,  was  a  resident  of  London,  England,  and  that 
at  that  time  William  Smith  kept  a  grocery  store  on  the 

corner  of  street  and  street;  that  I  was 

well  acquainted  with  the  said  William  Smith,  being  a  regu- 
lar customer  of  his;  that  I  saw  and  talked  with  the  said 
William  Smith  daily  and  was  always  led  to  believe  that  the 
said  William  Smith  was  the  owner  of  the  said  store;  that 
the  matter  of  the  amount  of  money  it  took  to  run  a  grocery 
store  was  the  subject  of  our  conversation  at  various  times 
previous  to  the  said  tenth  day  of  June,  1905,  and  at  all  such 
times  and  on  all  such  occasions  the  said  William  Smith  led 
me  to  believe  that  he  was  the  sole  owner  of  the  store. 


JOHN  STILES. 


o 


Sworn  to  (or  affirmed)  and  subscribed  before  me  this  10th 
day  of  September,  1910,  at  Seattle,  King  County,  Washing- 
ton, United  States  of  America,  and  I  hereby  certify  that  I 
am  a  notary  public  of  the  state  of  Washington,  having  been 

English  case,  in  a  decree  for  an  was  held  that  an  affidavit  taken 

accounting   it    was   ordered   that  before  a  notary  public  in  a  for- 

an  affidavit  by  a  person  in  Am-  eign    country,    and    not    in    Eng- 

sterdam,    there    made,   should   be  land,    could    not    be    used    in    a 

made  before   a  notary   with  the  court  in  the  province  of  Quebec, 

assistance    of     a     magistrate,    if  as    the    provision    in    relation    to 

necessary  under  the  laws  of  Hoi-  affidavits    taken    before   iiotaries 

land:      Kinnaird    v.     Saltoun,     1  referred  only  to  notaries  in  Eng- 

Madd.  227,  56  Eng.  Eeprint,  84;  land. 

■see    Cole    v.    Sherard,    11     Exch.  Either  the   county  clerk's   cer- 

482;    Hutcheson    v.    Mannington,  tiflcate  or  a  certificate  from  the 

^  Ves.  Jr.  823,  31  Eng.  Eeprint,  secretary    of     state    may    be    at- 

1327.    In      Laurendean      v.      De  tached;     it    is    not    necessary    to 

Montlord,   7    Quebec   Pr.    37,   it  have  both. 


60  LAW   FOB  NOTARIES  PUBLIC. 

duly  appointed,  commissioned  and  sworn;  that  I  am  author- 
ized to  take  affidavits;  that  the  said  affidavit  was  made  be- 
fore me  within  my  jurisdiction ;  that  I  have  affixed  my  offi- 
cial seal  hereto;  and  that  my  commission  does  not  expire 
until  January  10,  1913." 

[Notary's  Seal]  JOHN  DOB, 

Notary  Public  in  and  for  the  State  of  Washington,  Residing 
at  Seattle. 

State  of  Washington, 

County  of  King, — ^ss.  No. ^ 


I,  ,   county   clerk  of  King  county   and   ex-officio 

clerk  of  the  superior  court  of  the  state  of  Washington,  for 
the  county  of  King,  the  same  being  a  court  of  record,  do 
hereby  certify  that  John  Doe,  the  person  subscribing  the 
annexed  affidavit  and  before  whom  the  same  was  taken, 
was  at  the  date  thereof,  and  is  now,  a  notary  public  in  and 
for  the  said  state,  duly  appointed  and  commissioned;  that 
by  virtue  of  his  said  office,  he  is  authorized  to  take  acknowl- 
edgments of  deeds  and  other  instruments  of  writing  under 
seal  and  to  administer  oaths. 

I  do  further  certify  that  I  am  acquainted  with  the  hand- 
writing of  the  said  John  Doe  and  verily  believe  the  name 
Bubscribed  to  the  said  annexed  instrument  is  his  proper  and 
genuine  signature. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and 
affixed  the  seal  of  said  court,  at  Seattle,  this  10th  day  of 
September,  A.  D.  1910. 


[County  Clerk's  Seal] 


Clerk. 
By , 


Deputy. 

*  The   explanation   of  this  ex-  on     a     certificate.    The     county 

tended  jurat  will  be  found  under  clerk's  fee  for  the  certificate  is 

§  65.  one  dollar.    The  fee  charged  by 

6  The  county  clerk's  certificate  the  secretary  of    state    for    the 

is  obtained  by  taking  the  instru-  same    certificate    is    two     dollars 

ment  to  the  county  clerk's  office  under  the  Law  of  1907,  page  94. 
when  he  or  his  deputy  will  paste 


NOTARY  PUBLIC:   FUNCTIONS  AND  POWERS.  61 

BRITISH  VICE-CONSULATE.« 

Seattle,  Washington,  U.  S.  A. 

To  All  Whom  These  Presents  shall  Come : 

I,  ,  British  Pro-consul  at  Seattle,  in  the  state  of 

Washington,  United  States  of  America,  do  hereby  certify 
that  I  have  reason  to  believe  that  the  signature  sub- 
scribed and  seal  affixed  to  the  certificate  hereunto  annexed, 
are  the  true  signature  and  seal  of  John  Doe  who  was,  on 
the  day  and  date  of  said  certificate,  a  notary  public,  duly 
commissioned  and  practicing  in  the  city  of  Seattle  and 
county  of  King,  to  whose  acts  full  faith  and  credit  can  be 
given. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and 
seal  of  office,  in  Seattle,  the  12th  day  of  December,  A.  D. 
one  thousand  nine  hundred  and  ten. 


British  Pro-consul. 


The  following  is  a  power  of  attorney  drawn  here  to  be 
used  in  England : 

FORM  IV. 

United  States  of  America. 

State  of  Washington, 
County  of  King, — ^ss. 

Know  all  men  by  these  presents  that  I,  John  Stiles  of 
Seattle,  Washington,  do  hereby  appoint  Richard  Roe  of  Lon- 
don, England,  my  attorney,  for  me  and  in  my  name,  to 
sign,  seal,  acknowledge,  and  deliver  as  my  act  and  deed  a 
certain  deed,  prepared  for  execution,  and  bearing  date  on 
or  about  the  31st  day  of  August,  1909,  intended  to  convey 
to  William  Stiles  of  London,  England,  a  certain  lot  of  land, 
situate,  lying  and  being:    (the  description  of  the  London 

6  After     getting     the     county  resentative    of     the     country    to 

clerk's  certificate  or  a  certificate  which  it  is  to  be  sent.     The  con- 

of  the  secretary  of  state,  the  in-  sul  will  attach  his  certificate,  for 

strument  should  be  taken  to  the  which  he  will  charge  a  fee. 
office  of  the  consul  or  other  rep- 


62  LAW  FOR  NOTAEIES  PUBLIC. 

property  should  go  in  here)  for  the  consideration  of  forty 
thousand  dollars,  and  for  me  to  receive  said  purchase  money. 


(Signed)     JOHN  STILES. 


O 


Witnesses: 

FRANK  JONES,  27  W.  81st  Street,  Seattle,  Wash. 
JAMES  SMITH,  42  1st  Ave.,  Seattle,  Wash. 

On  this  14th  day  of  September,  A.  D.  1910,  at  10  A.  M., 
Pacific  time,  before  me,  John  Doe,  a  notary  public  in  and 
for  the  state  of  Washington,  personally  appeared  John  Stiles, 
known  to  me  to  be  the  person  described  in  and  who  exe- 
cuted the  foregoing  instrument,  and  who  thereupon  acknowl- 
edged to  me  that  he  executed  the  same  freely  and  volun- 
tarily and  for  the  uses  and  purposes  therein  mentioned. 
And  I  hereby  certify  that  I  am  a  notary  public  of  the  state 
of  Washington,  having  been  duly  appointed,  commissioned 
and  sworn ;  that  a  notary  public  of  Washington  is  authorized 
to  take  acknowledgments;  that  the  said  acknowledgment 
was  taken  by  me  within  my  jurisdiction ;  that  I  have  affixed 
my  official  seal  hereto  and  that  my  commission  does  not  ex- 
pire until  January  1,  1913. 

[Notary's  Seal]  JOHN  DOB, 

Notary  Public  in  and  for  the  State  of  Washington,  Residing 
in  Seattle. 


No. 


United  States  of  America. 

State  of  Washington. 

Office  of  the 

Secretary  of  State. 

I,  ,  Secretary  of  State  of  the  state  of  Washing- 
ton, and  custodian  of  the  seal  of  said  state,  do  hereby  cer- 

«  After     getting     the     county  resentative  of  the  country  to  which 

clerk's   certificate   or   a  certificate  it  is  to  be  sent.     The  consul  will 

of  the  secretary  of  state,  the  in-  attach  his  certificate,  for  which  he 

strument  should   be   taken   to  the  will  charge  a  fee. 
office  of  the  consul  or  other  rep- 


NOTAEY  PUBLIC:   FUNCTIONS  AND  POWERS.  63 

tify  that  John  Doe  was  on  the  1st  day  of  January,  1909,  ap- 
pointed a  notary  public  in  and  for  the  state  of  Washington, 
for  the  term  of  four  years,  and  that  he  was  commissioned 
on  the  31st  day  of  January,  1909,  for  four  years  from  date 
of  appointment. 

I  further  certify  that  the  said  John  Doe  is  authorized  by 
the  laws  of  the  state  of  Washington  to  administer  oaths  and 
take  acknowledgments  of  deeds  and  other  instruments  of 
writing. 

Witness  my  hand  and  the  seal  of  the  state  at  Olympia, 
this,  the  15th  day  of  September,  1910. 

[Seal  of  the  State]  , 

Secretary  of  State. 

By , 

Chief  Clerk. 

BRITISH  VICE-CONSULATE. 
Seattle,  Washington,  U.  S.  A. 
To  All  Whom  These  Presents  shall  Come : 

I,  ,  British  Pro-consul  at  Seattle,  in  the  state  of 

Washington,  United  States  of  America,  do  hereby  certify 
that  I  have  reason  to  believe  that  th*  signature  subscribed 
and  seal  affixed  to  the  certificate  hereunto  annexed,  are  the 

true  signature  and  seal  of ,  who  was,  on  the  day  and 

date  of  said  certificate,  secretary  of  state  of  the  state  of 
Washington,  to  whose  acts  full  faith  and  credit  can  be 
given. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and 
seal  of  office,  in  Seattle,  the  18th  day  of  September,  A.  D. 
one  thousand  nine  hundred  and  ten. 


British  Pro-consul. 


64  liAW  FOR  NOTARIES  PUBLIC. 

FORM  V. 

MARINE  NOTE  OF  PROTEST  BY  MASTER. 

The  United  States  of  America. 

State  of  Washington, 
County  of  King, — ss. 

Be  it  known,  that  on  this  10th  day  of  December,  1910, 
before  me,  John  Doe,  a  notary  public  for  the  state  of  Wash- 
ington residing  in  the  county  of  King,  personally  appeared 
Richard  Roe,  master  of  the  "City  of  Panama,"  or  vessel 
called  the  "City  of  Panama,"  of  the  burthen  of  one  hundred 
tons,  or  thereabouts,  who  declares  that  he  sailed  last  in  the 
vessel  under  his  command,  laden  with  a  cargo  of  merchan- 
dise, on  the  30th  day  of  November,  1910,  from  the  port  of 
San  Francisco,  and  bound  for  the  port  of  Nome,  in  the  terri- 
tory of  Alaska.  Thus  the  said  master  notes  this,  his  pro- 
test, before  me,  reserving  to  himself  the  right  to  extend  the 
same  at  any  time  and  place  convenient. 

RICHARD  ROE. 

Subscribed  and  sworn  to  before  me,  this  10th  day  of  De- 
cember, 1910. 

[Notary's  Seal]  JOHN  DOE, 

Notary  Public   of  the   State  of  Washington,   Residing   at 
Seattle. 

FORM  VI. 

MARINE  PROTEST. 

United  States  of  America. 

State  of  Washington, 
County  of  King, — ss. 

To  All  People  to  Whom  These  Presents  shall  Come  or  may 
Concern : 

I,  John  Doe,  a  notary  public,  in  and  for  the  county  of 
King,  in  the  state  aforesaid,  by  letters  patent,  under  the 
great  seal  of  the  said  state,  duly  commissioned  and  sworn, 
dwelling  in  the  city  of  Seattle,  send  greeting: 

Know  ye,  that  on  the  10th  day  of  December,  in  the  year 
of  our  Lord  one  thousand  nine  hundred  and  ten,  before 


NOTARY   PUBLIC:   FUNCTIONS   AND   POWERS.  65 

me,  the  said  notary  public,  appeared  Richard  Roe,  master 
of  the  vessel  called  "City  of  Panama,"  of  the  city  of  Los 
Angeles,  burthen  one  hundred  tons,  and  noted  in  due  form 
of  law  with  me,  the  said  notary,  his  protest,  for  the  use  and 
purposes  hereinafter  mentioned ;  and  now  at  this  day,  to  wit, 
the  day  of  the  date  hereof,  before  me,  the  said  notary,  at 
the  city  of  Seattle  aforesaid,  again  comes  the  said  Richard 
Roe,  master,  and  requires  me  to  extend  his  protest,  and  to- 
gether with  the  said  master,  also  comes  John  Stiles,  mate, 
and  Henry  Jones,  Frank  Smith,  seamen,  belonging  to  the 
aforesaid  vessel,  all  of  whom,  being  by  me  duly  sworn,  vol- 
untarily, freely  and  solemnly  do  declare  and  depose  as  fol- 
lows, that  is  to  say :  That  on  the  30th  day  of  November,  1910, 
at  10  0  'clock  P.  M.,  the  said  vessel  left  San  Francisco,  in  the 
state  of  California,  bound  thence  to  the  port  of  Nome,  in 
the  territory  of  Alaska,  United  States  of  America,  laden 
with  merchandise ;  that  the  said  vessel  was  then  stout, 
staunch  and  strong;  had  her  cargo  well  and  sufficiently 
stowed  and  secured;  was  well  masted,  manned,  tackled, 
victualed,  appareled  and  appointed,  and  was  in  every  re- 
spect fit  for  sea,  and  the  voyage  she  was  about  to  undertake : 
And  the  said  master  further  says,  that  as  all  the  damage 
and  injury  which  already  has  or  may  hereafter  appear  to 
have  happened  or  occurred  to  the  said  vessel  or  her  said 
cargo  has  been  occasioned  solely  by  the  circumstances  here- 
inbefore stated,  and  cannot,  nor  ought  to  be  attributed  to 
any  insufficiency  of  the  said  vessel,  or  default  of  him,  this 
deponent,  his  officers  or  crew.  He  now  requires  of  me,  the 
said  notary,  to  make  this  protest  and  this  public  act  thereof, 
'that  the  same  may  serve  and.be  of  full  force  and  value,  as 
of  right  shall  appertain.  And  thereupon  the  said  master 
doth  protest,  and  I,  the  said  notary,  at  his  special  instance 
and  request,  do  by  these  presents  publicly  and  solemnly  pro- 
test against  winds,  weather  and  seas,  and  against  all  and 
every  accident,  matter  and  thing,  had  and  met  with  as  afore- 
said, whereby  or  by  means  whereof  the  said  vessel,  or  her 
cargo,  already  has  or  hereafter  shall  appear  to  have  suffered 
or  sustained  damage  or  injury,  for  all  losses,  costs,  charges, 
expenses,  damages  and  injury  which  the  said  master,  or  the 
5 


66  LAW  FOR  NOTARIES  PUBLIC. 

owner  or  owners  of  the  said  vessel,  or  the  owners,  freighters, 
or  shippers  of  her  said  cargo,  or  any  other  person  or  per- 
sons interested  or  concerned  in  either,  already  have  or  may 
hereafter  pay,  sustain,  incur,  or  be  put  into,  by  or  on  ac- 
count of  the  premises,  or  for  which  the  insurer  or  insurers 
of  the  said  vessel,  or  her  cargo,  is  or  are  respectively  liable 
to  pay  or  make  contribution  or  average,  according  to  cus- 
tom, or  their  respective  contracts  or  obligations;  and  that 
no  part  of  such  losses  and  expenses  already  incurred,  or 
hereafter  to  be  incurred,  do  fall  on  him,  the  said  master, 
his  officers  or  crew. 

This  done  and  protested,  in  Seattle,  this  12th  day  of  De- 
cember, 1910. 

RICHARD  ROE, 

Master. 
JOHN  STILES, 

Mate. 
HENRY  JONES, 
FRANK  SMITH, 
Seamen. 

In  witness  whereof,  as  well  the  said  appearers,  as  I,  the 
said  notary,  have  hereunto  subscribed  these  presents,  and  I, 
the  said  notary,  hereunto  attached  my  notarial  seal,  the  day 
and  year  last  aforesaid. 

[Notary's  Seal]  JOHN  DOB, 

Notary  Public  in  and  for  the  State  of  Washington,  Resid- 
ing at  Seattle. 

State  of  Washington, 
County  of  King, — ^^ss. 

I,  John  Doe,  a  notary  public  in  and  for  said  county,  in 
the  state  aforesaid,  do  hereby  certify  that  the  foregoing  con- 
tains a  true  and  correct  copy  of  the  original  protest  entered 
on  record  before  me,  by  Richard  Roe,  master  of  the  "City 
of  Panama,"  said  protest  having  been  noted  on  the  10th  day 
of  December,  1910,  and  extended  before  me  on  the  12th  day 
of  December,  1910. 


NOTABY  PUBLIC:   FUNCTIONS  AND  POWERS.  67 

In  -witness  whereof,  I  have  hereunto  set  my  hand  and 
notarial  seal,  this  12th  day  of  December,  1910. 

[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington,  Resid- 
ing at  Seattle. 

In  preparing  depositions  for  use  in  a  foreign  country  the 
notary  would  follow  the  instructions  in  his  commission  is- 
sued to  him  by  some  court  in  this  country.  For  forms  see 
the  subject  "Depositions"  and  "Letters  Rogatory." 

The  subject  of  protests  of  negotiable  instruments  is  the 
same  over  all  the  world.  A  notary  would  protest  an  Eng- 
lish bill  of  exchange  or  a  German  promissory  note  in  the 
same  manner  he  would  a  note  from  Texas,  New  York  or 
any  other  state.  For  forms  see  the  subject  "Protesting 
Negotiable  Instruments." 

§  27.    Functions  and  Powers:  Under  the  Law-merchant. 

The  "law-merchant"  is  the  general  body  of  commercial 
usages  in  matters  relative  to  commerce.^  Blackstone  calls 
it  the  custom  of  merchants,  and  ranks  it  under  the  head  of 
the  particular  customs  of  England,  which  go  to  make  up 
the  great  body  of  the  common  law.^  Since,  however,  its 
character  is  not  local,  nor  its  obligation  confined  to  a  par- 
ticular district,  it  cannot  with  propriety  be  considered  as  a 
custom  in  the  technical  sense  ;^  it  is  rather  a  system  of  law 
which  does  not  rest  exclusively  on  the  positive  institutions 
and  local  customs  of  any  particular  country,  but  consists  of 
certain  principles  of  equity  and  usages  of  trade  which  gen- 
eral convenience  and  a  common  sense  of  justice  have  estab- 
lished, to  regulate  the  dealings  of  merchants  and  mariners  in 
all  the  commercial  countries  of  the  civilized  world.*  These 
usages  constitute  a  part  of  the  general  law  of  any  land ;  their 
application  is  not  confined  to  merchants,  but  extends  to  all 
persons  concerned  in  any  mercantile  transaction.^ 

1  Bouv.  Law  Diet.  (Eawle's  5  Bouv,  Law.  Diet.  (Eawle's 
Rev.),  tit.  "Law-merchant."  Eev.),   tit.    "Law-merchant";    Par- 

2  1  Black  Com.  75.  dessus.  Droit  Commercial;  Beawes, 

3  1  Steph.  Com.  54.  Lex.   Mereatoria  Eediviva;   Caines, 

4  3  Kent's  Com.  2.  Lex  Mereatoria  Americana;  Plan- 


68  LAW  FOR  NOTARIES  PUBLIC. 

Independently  of  statute  a  notary  public  may  present 
foreign  bills  of  exchange  and  protest  them;®  but  a  protest  of 
commercial  paper  other  than  a  foreign  bill  of  exchange  is 
not  a  notarial  act  at  common  law.''' 

The  question  of  the  power  of  a  notary  under  the  "law- 
merchant"  is  not  an  important  one  in  the  state,  of  Wash- 
ington by  reason  of  the  Law  of  1889,  page  474,  section  4, 
which  says  that  **  every  duly  qualified  notary  public  is  au- 
thorized, in  any  county  in  this  state,  to  transact  and  perform 
all  matters  and  things  relating  to  protests,  protesting  bills 
of  exchange  and  promissory  notes,  and  such  other  duties  as 
pertain  to  that  office  by  the  custom  and  laws  merchant."  [a] 

[a]  The  Washington  statute  conferring  on  a  notary  the  powers 
which  he  would  otherwise  have  in  part  under  the  law-merchant  (Laws 
1889,  p.  474,  §4;  1  H.  C,  §  332;  Bal.  Code,  §  248;  2  Rem.  &  Bal.  Code, 
§  8298)  is  as  follows: 

"Every  duly  qualified  notary  public  is  authorized  in  any  county  in 
this  state, — 

"1.  To  transact  and  perform  all  matters  and  things  relating  to  pro- 
tests, protesting  bills  of  exchange  and  promissory  notes,  and  such  other 
duties  as  pertain  to  that  office  by  the  custom  and  laws  merchant." 

§  28.  Functions  and  Powers:  Under  Federal  Statutes. — 
Congress   never   has   passed   an   act    conferring   upon   the 

tandia,  I>ella  Guirisprudenze  Mari-  whence     their    use     spread    into 

tima    Commerciale,   Antica   e   Mo-  Western    Europe.     Their    negoti- 

dema;  Boulay-Paty,  Droit  Comm.  ability    is    due    to    the    law-mer- 

6  Opinion  of  Justices,  150  chant.  Promissory  notes  are 
Mass.  586,  23  N.  E.  850,  6  L.  E.  said  to  be  of  great  antiquity 
A.  842;  Nicholls  v.  Webb,  8  and  to  have  been  in  use  among 
Wheat.  (U.  S.)  326,  5  L.  ed.  628.  the  Romans;   their  negotiability, 

7  29  Cyc.  Law  &  Proc,  p.  however,  is  due  to  the  Statute  3 
1081;  4  Am.  &  Eng.  Ency.  of  Law,  &  4  Anne,  chapter  9,  which  de- 
2d  ed.,  p.  79;  Clerk  v.  Martin,  1  clares  that  promissory  notes 
Salk.  129;  Buller  v.  Crips,  6  shall  have  the  same  effect  and 
Mod.  29;  Norton  v.  Rose,  2  be  negotiable  in  like  manner  as 
Wash.  (Va.)  233;  Davis  v.  Mil-  inland  bills  of  exchange  accord- 
ler,  14  Gratt.  (Va.)  1;  Statute  ing  to  the  customs  of  mer- 
3  &  4  Anne,  c.  9.  chants":  4  Am.  &  Eng.  Ency.  of 

"Bills   of    exchange    originated      Law,    2d    ed.,    p.    79;    Daniel    on 
with    the    revival    of    commerce      Negotiable    Instruments,    §  5. 
after   the   Dark   Ages,   in   Italy, 


NOTARY  PUBLIC:   FUNCTIONS  AND   POWERS.  69 

notaries  of  the  different  states  and  territories  a  general 
power  to  administer  oaths,  and  to  take  affidavits,  acknowl- 
edgments, and  depositions;  therefore  their  authority  in  this 
regard  is  limited  to  those  cases  in  which  the  power  has  been 
expressly  conferred;* 

The  following  are  the  laws  now  in  force  on  the  subject: 

Definitions. — "And  a  requirement  of  an  'oath'  shall  be 
deemed  complied  with  by  making  affirmation  in  judicial 
form":  U.  S.  Rev.  Stats.,  §  1,  July,  1868,  c.  186,  §  104. 

Election  Cases. — A  notary  public  may  take  testimony  after 
issuing  subpoena  in  contested  election  cases  in  his  congres- 
sional district :  U.  S.  Rev.  Stats.,  §  110,  Jan.  23,  1869,  c.  15. 
See  §§  105-130. 

Government  Employees. — A  notary  public  who  is  an  officer, 
clerk  or  employee  of  any  executive  department  of  the  United 
States  shall  not  charge  any  fee  for  administering  oaths  of 
office  to  employees  of  such  department  required  to  be  taken 
on  appointment  or  promotion  therein :  U.  S.  Rev.  Stats.»  §  170, 
Aug.  29,  1890,  c.  820. 

Postoffice  Department. — A  justice  of  the  peace  and  there- 
fore a  notary  public  may  administer  oaths  in  relation  to  the 
examination  and  settlement  of  the  accounts  committed  to  the 
charge  of  the  auditor  of  the  postoffice  department :  U.  S.  Rev. 
Stats.,  §  298,  June  8,  1872,  c.  335,  §  24. 

Postal  Service. — A  notary  public  may  administer  the  oath 
of  office  to  any  person  employed  in  the  postal  service.  The 
oath  is  as  follows:  "I,  A  B,  do  solemnly  swear  (or  affirm,  as 
the  case  may  be)  that  I  will  faithfully  perform  all  the  duties 
required  of  me  and  abstain  from  everything  forbidden  by  the 
laws  in  relation  to  the  establishment  of  postoffices  and  post- 
roads  within  the  United  States;  and  that  I  will  honestly  and 
truly  account  for  and  pay  over  any  money  belonging  to  the 
said  United  States  which  may  come  into  my  possession  or  con- 
trol; and  I  also  further  swear  (or  affirm)  that  I  will  support 

1  United  States  v.  Curtis,  107  131  U.  S.  50,  9  Sup.  Ct.  Eep.  663, 
IT.  S.  671,  2  Sup.  Ct.  Eep.  507,  27  33  L.  ed.  97;  United  States  v. 
L.  ed.  534;  United  States  v.  Hall,      Maniqn,  44  Fed.  800. 


70  LAW   j<0«   NOTARIES  PUBLIC. 

the  constitution  of  the  United  States;  so  help  me  God":  U.  S. 
Rev.  Stats.,  §  391,  March  5,  1874,  c.  46. 

Circuit  Court  Commissioners. — The  office  of  circuit  court 
commissioner  was  abolished  by  a  law  which  went  into  effect 
June  30,  1897.  By  the  same  law  United  States  commis- 
sioners were  to  be  appointed  and  "all  acts  and  parts  of  acts 
applicable  to  commissioners  of  the  circuit  courts,  except  as 
to  appointment  and  fees,  shall  be  applicable  to  United 
States  commissioners  appointed  under  this  act."  By  sec- 
tion 863,  below,  notaries  may  do  what  commissioners  of  the 
United  States  circuit  courts  may  do :  U.  S.  Rev.  Stats.,  §  627, 
May  28,  1896,  c.  252,  §  19. 

Oath  to  Judges. — A  notary  public  may  administer  the  oath 
of  office  to  the  justices  of  the  supreme  court,  the  circuit  judges, 
and  the  district  judges :  U.  S.  Rev.  Stats.,  §  712,  Sept.  24, 1789, 
c.  20,  §  8. 

Marshals  and  Deputy  Marshals. — A  notary  public  may  ad- 
minister the  oath  or  affirmation  of  office  to  any  marshal  or 
deputy  marshal.  The  following  is  the  form:  "I,  A  B,  do 
solemnly  swear  (or  affirm)  that  I  will  faithfully  execute  all 
lawful  precepts  directed  to  the  marshal  of  the  district  of 

,  under  the  authority  of  the  United  States,  and  true 

returns  make,  and  in  all  things  well  and  truly,  and  without 
malice  or  partiality,  perform  the  duties  of  the  office  of  mar- 
shal (or  marshal's  deputy,  as  the  case  may  be)  of  the  district 

of ,  during  my  continuance  in  said  office.     So  help 

me  God."  The  words  "so  help  me  God"  shall  be  omitted 
in  all  cases  where  an  affirmation  is  admitted  instead  of  an 
oath :  U.  S.  Rev.  Stats.,  §  782,  Sept.  16, 1850,  c.  52,  §§  1,  2. 

Oath  to  Court  Clerks. — A  notary  public  may  administer  the 
oath  of  office  to  any  clerk  or  deputy  clerk  of  a  circuit  or  dis- 
trict court :  U.  S.  Rev.  Stats.,  §  794,  June  30,  1870,  c.  180,  §  7. 

Depositions  De  Bene  Esse. — ' '  The  testimony  of  any  witness 
may  be  taken  in  any  civil  cause  depending  in  a  district  or 
circuit  court  by  deposition  de  bene  esse,  when  the  witness 
lives  at  a  greater  distance  from  the  place  of  trial  than  one 
hundred  miles,  or  is  bound  on  a  voyage  to  sea,  or  is  about  to 
go  out  of  the  United  States,  or  out  of  the  district  in  which 


NOTARY   PUBLIC:   FUNCTIONS   AND   POWERS.  71 

the  case  is  to  be  tried,  and  to  a  greater  distance  than  one  hun- 
dred miles  from  the  place  of  trial,  before  the  time  of  trial, 
or  when  he  is  ancient  and  infirm.  The  deposition  may  be 
taken  before  any  ....  notary  public,  not  being  of  counsel 
or  attorney  to  either  of  the  parties,  nor  interested  in  the  event 
of  the  cause.  Reasonable  notice  must  first  be  given  in  writing 
by  the  party  or  his  attorney  proposing  to  take  such  deposi- 
tion, to  the  opposite  party  or  his  attorney  of  record,  as  either 
may  be  nearest,  which  notice  shall  state  the  name  of  the  wit- 
ness and  the  time  and  place  of  the  taking  of  his  deposition; 
and  in  all  cases  in  rem,  the  person  having  the  agency  or  pos- 
session of  the  property  at  the  time  of  the  seizure  shall  be 
deemed  the  adverse  party,  until  a  claim  shall  have  been  put 
in ;  and  whenever,  by  reason  of  the  absence  from  the  district 
and  want  of  an  attorney  of  record  or  other  reason,  the  giving 
of  the  notice  herein  required  shall  be  impracticable,  it  shall 
be  lawful  to  take  such  depositions  as  there  shall  be  urgent 
necessity  for  taking,  upon  such  notice  as  any  judge  author- 
ized to  hold  courts  in  such  circuit  or  district  shall  think  rea- 
sonable and  direct.  Any  person  may  be  compelled  to  appear 
and  depose  as  provided  by  this  section,  in  the  same  manner 
as  witnesses  may  be  compelled  to  appear  and  testify  in  court" : 
U.  S.  Rev.  Stats.,  §  863,  May  9,  1872,  c.  146. 

Mode  of  Taking  Depositions  De  Bene  Esse. — *  *  Every  person 
deposing  as  provided  in  the  preceding  section  shall  be  cau- 
tioned and  sworn  to  testify  the  whole  truth,  and  carefully 
examined.  His  testimony  shall  be  reduced  to  writing  or  type- 
writing by  the  officer  taking  the  deposition,  or  by  some  person 
under  his  personal  supervision,  or  by  the  deponent  himself 
in  the  officer's  presence,  and  by  no  other  person,  and  shall, 
after  it  has  been  reduced  to  writing,  be  subscribed  by  the 
deponent":  U.  S.  Rev.  Stats.,  §  865,  Sept.  24,  1789,  c.  20,  §  30. 

Notaries  may  Take  Depositions,  Acknowledgments  and  Affi- 
davits.— "Be  it  enacted,  etc.,  That  notaries  public  of  the  sev- 
eral states,  territories,  and  the  District  of  Columbia  be,  and 
they  are  hereby,  authorized  to  take  depositions,  and  do  all 
other  acts  in  relation  to  taking  testimony  to  be  used  in  the 
courts  of  the  United  States,  take  acknowledgments  and  affi- 
davits, in  the  same  manner  and  with  the  same  effect  as  com- 


72  LAW  FOR  NOTARIES  PUBLIC. 

missioners  of  the  United  States  circuit  court  may  now  law- 
fully take  or  do":  U.  S.  Rev.  Stats.,  §  863,  Aug.  15,  1876, 
e.  304. 

Depositions  may  he  Taken  in  Mode  Prescribed  by  State  Law. 
"Be  it  enacted,  That  in  addition  to  the  mode  of  taking  the 
depositions  of  witnesses  in  cattses  pending  at  law  or  in  equity 
in  the  district  or  circuit  courts  of  the  United  States,  it  shall 
be  lawful  to  take  the  depositions  or  testimony  of  witnesses  in 
the  mode  prescribed  by  the  laws  of  the  state  in  which  the 
courts  are  held":  U.  S.  Rev.  Stats.,  §  866,  March  9,  1892,  c.  14. 

Depositions  in  Perpetuam  Memoriam  Rei. — "Any  circuit 
court,  upon  application  to  it  as  a  court  of  equity,  may  accord- 
ing to  the  usages  of  chancery,  direct  depositions  to  be  taken 
in  perpetuam  rei  memoriam,  if  they  relate  to  any  matters  that 
may  be  cognizable  in  any  court  of  the  United  States."  This 
would  be  done  through  a  commission;  a  notary  would  but 
carry  out  the  commission  as  issued  to  him  by  the  court :  U.  S. 
Rev.  Stats.,  §§  866-869. 

Letters  Rogatory. — **.  .  .  .  When  letters  rogatory  are  ad- 
dressed from  any  court  of  a  foreign  country  to  any  circuit 
court  of  the  United  States,  a  commissioner  of  such  circuit 
court  designated  by  said  court  to  make  the  examination  of  the 
witnesses  mentioned  in  said  letters,  shall  have  power  to  com- 
pel the  witnesses  to  appear  and  depose  in  the  same  manner  as 
witnesses  may  be  compelled  to  appear  and  testify  in  courts ' ' : 
U.  S.  Rev.  Stats.,  §  875,  Feb.  27,  1877,  c.  69.  See,  also,  U.  S. 
Rev.  Stats.,  §§  4071-4074. 

Practice  in  the  United  States  Courts. — The  supreme  court 
has  the  power  to  regulate  the  practice  of  the  circuit  and  dis- 
trict courts:  U.  S.  Rev.  Stats.,  §  917,  Aug.  23, 1842,  c.  188,  §  6. 

Oath  to  Persons  Elected  or  Appointed  to  Office. — A  notary 
public  may  administer  the  oath  following  to  any  person  elected 
or  appointed  to  any  office  of  honor  or  profit  either  in  the 
civil,  military,  or  naval  service,  except  the  President  of  the 
United  States:  "I,  A  B,  do  solemnly  swear  (or  affirm)  that 
I  will  support  and  defend  the  constitution  of  the  United  States 
against  all  enemies,  foreign  and  domestic;  that  I  will  bear 
true  faith  and  allegiance  to  the  same;  that  I  take  this  obliga- 


NOTARY   PUBLIC:   FUNCTIONS  AND   POWERS.  73 

tion  freely,  without  any  mental  reservation  or  purpose  of 
evasion;  and  that  I  will  well  and  faithfully  discharge  the 
duties  of  the  office  on  which  I  am  about  to  enter.  So  help 
me  God":  U.  S.  Rev.  Stats.,  §  1756,  May  13,  1884,  c.  46; 
§  1757,  Feb.  15,  1871,  c.  53 ;  §  1758,  Aug.  6,  1861,  c.  64,  §  2. 

West  Point  Cadets. — A  notary  public  may  administer  the 
special  oath  taken  by  an  appointee  before  entering  the  United 
States  Military  Academy:  U.  S.  Rev.  Stats.,  §  1758,  Aug.  6, 
1861,  c.  64,  §  2;  §  1320,  June  8,  1866,  c.  110,  §  2. 

Justices  of  the  Peace. — "In  all  cases  in  which,  under  the 
laws  of  the  United  States,  oaths  or  acknowledgments  may  now 
be  taken  or  made  before  any  justice  of  the  peace  of  any  state 
or  territory,  or  in  the  District  of  Columbia,  they  may  here- 
after be  also  taken  or  made  by  or  before  any  notary  public 
duly  appointed  in  any  state,  district,  or  territory,  or  any  of 
the  commissioners  of  the  circuit  courts,  and,  when  certified 
under  the  hand  and  official  seal  of  such  notary  or  commis- 
sioner, shall  have  the  same  force  and  effect  as  if  taken  or  made 
by  or  before  such  justice  of  the  peace":  U.  S.  Rev.  Stats., 
§  1778,  July  29,  1854,  c.  159,  §  1.^ 

State  Legislators  and  State  Officers. — A  notary  public  may 
administer  the  following  oath  to  members  of  state  legislatures 
and  to  state  officers:  "I,  A  B,  do  solemnly  swear  that  I  will 
support  the  constitution  of  the  United  States."  The  notary 
**  administering  such  oath  shall  cause  a  record  or  certificate 
thereof  to  be  made  in  the  same  manner  as,  by  the  laws  of  the 
state,  he  is  directed  to  record  or  certify  the  oath  of  office": 
U.  S.  Rev.  Stats.,  §§  1836,  1837,  June  1,  1879,  c.  1,  §  3. 

Naturalization  Papers. — "Sec.  10.  That  in  case  the  peti- 
tioner (for  naturalization  papers)  has  not  resided  in  the  state, 
territory,  or  district  for  a  period  of  five  years  continuously 
and  immediately  preceding  the  filing  of  his  petition  he  may 
establish  by  two  witnesses,  both  in  his  petition  and  at  the  hear- 
ing, the  time  of  his  residence  within  the  state,  provided  that 

2  It    will    be    seen     from    this  aflSx  his  seal  in  all  cases  where  he 

section  that  the  notary's  seal  is  is  authorized  to  act  by  a  federal 

necessary   under   this   act.     It   is  statute, 
safe   practice   for    the   notary   to 


,74  LAW  FOR  NOTARIES  PUBLIC. 

it  has  been  for  more  than  one  year,  and  the  remaining  portion 
of  his  five  years'  residence  within  the  United  States  required 
by  law  to  be  established  may  be  proved  by  the  depositions  of 
two  or  more  witnesses  who  are  citizens  of  the  United  States, 
upon  notice  to  the  Bureau  of  Immigration  and  Naturalization 
and  the  United  States  attorney  for  the  district  in  which  said 
witnesses  may  reside":  U.  S.  Rev.  Stats.,  §  2127,  June  29, 
1906,  c.  3592,  §  10.  It  should  be  stated  here  that  the  act  does 
not  specify  the  officers  who  may  take  the  depositions. 

Land  Office  Depositions. — "Sec.  4.  That  whenever  the  wit- 
ness resides  outside  the  county  in  which  the  hearing  (before 
registers  and  receivers  of  the  land  office)  occurs  any  party  to 
the  proceeding  may  take  the  testimony  of  such  witness  in  the 
county  of  such  witness'  residence  in  the  form  of  depositions 
by  giving  ten  days'  written  notice  of  the  time  and  place  of 
taking  such  depositions  to  the  opposite  party  or  parties.  The 
depositions  may  be  taken  before  any  United  States  commis- 
sioner, notary  public,  judge  or  clerk  of  a  court  of  record. 
Subpoenas  for  witnesses  before  the  officer  taking  depositions 
may  issue  from  the  office  of  the  register  or  receiver,  or  may 
be  issued  by  the  officer  taking  the  depositions,  and  disobe- 
dience thereof,  as  defined  in  this  act,  shall  also  be  punished ; 
and  the  witness  shall  receive  the  same  fees  and  mileage  and 
be  subject  to  the  same  penalties  in  all  respects  as  in  the  case 
of  violation  of  a  subpoena  to  appear  before  the  register  or 
receiver,  and  subject  to  the  same  limitations.  The  fees  of  the 
officer  taking  the  depositions  shall  be  the  same  as  those  allowed 
in  the  state  or  territorial  courts,  and  shall  be  paid  by  the  party 
taking  the  depositions,  and  an  itemized  account  of  the  fees 
shall  be  made  by  the  officer  taking  the  depositions  and  at- 
tached to  the  depositions. 

"Sec.  5.  That  whenever  the  taking  of  any  depositions 
taken  in  pursuance  of  the  foregoing  provisions  of  this  act  is 
concluded  the  opposite  party  may  proceed  at  once  at  his  own 
expense  to  take  depositions  in  his  own  behalf,  at  the  same  time 
and  place  and  before  the  same  officer ;  Provided,  That  he  shall, 
before  taking  of  the  depositions  in  the  first  instance  is  entered 
upon,  give  notice  to  the  opposing  party,  or  any  agent  or 
attorney  representing  him  in  the  taking  of  said  depositions, 


NOTARY  PUBLIC:   FUNCTIONS  AND  POWERS.  75 

of  his  intention  to  do  so":  U.  S.  Rev.  Stats.,  §  2246,  Jan.  31, 
1903,  e.  344,  §  4. 

Land  Office  Affidavits,  etc. — Any  United  States  commis- 
sioner, and  therefore  any  notary  public,  may  take  all  proofs, 
affidavits  and  oaths  of  any  kind  whatsoever  required  to  be 
made  by  applicants  and  entrymen  under  the  homestead,  pre- 
emption, timber  culture,  desert  land,  and  timber  and  stone 
acts.  The  act  goes  on  to  say:  "That  in  case  the  affidavits, 
proofs,  and  oaths  hereinbefore  mentioned  be  taken  out  of  the 
county  in  which  the  land  is  located  the  applicant  must  show 
by  affidavit,  satisfactory  to  the  commissioner  of  the  general 
land  office,  that  it  was  taken  before  the  nearest  or  most  acces- 
sible officer  qualified  to  take  said  affidavits,  proofs,  and  oaths 
in  the  land  districts  in  which  the  lands  applied  for  are 
located;  but  such  showing  by  affidavit  need  not  be  made  in 
making  final  proof  if  the  proof  be  taken  in  the  town  or  city 
where  the  newspaper  is  published  in  which  the  final  proof 
notice  is  printed.  The  proof,  affidavit,  and  oath,  when  so 
made  and  duly  subscribed,  shall  have  the  same  force  and  effect 
as  if  made  before  the  register  and  receiver,  when  transmitted 
to  them  with  the  fees  and  commissions  allowed  and  required 

by  law That  the  fees  for  entries  and  for  final  proofs 

when  made  before  any  other  officer  than  the  register  and 
receiver  shall  be  as  follows: 

"For  each  affidavit,  twenty-five  cents. 

"For  each  deposition  of  claimant  or  witness,  when  not  pre- 
pared by  officer,  twenty-five  cents. 

"For  each  deposition  of  claimant  or  witness,  prepared  by 
the  officer,  one  dollar. 

"Any  officer  demanding  or  receiving  a  greater  sum  for  such 
service  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 
shall  be  punished  for  each  offense  by  a  fine  not  exceeding  one 
hundred  dollars":  U.  S.  Rev.  Stats.,  §  2294,  March  4,  1904, 
c.  394. 

Citizenship:  Mineral  Patents. — A  notary  public  may  admin- 
ister oaths  or  take  affidavits  required  for  proof  of  citizenship 
of  all  applicants  for  mineral  patents  who  reside  beyond  the 
limits  of  the  district  wherein  the  claim  is  situated :  U.  S.  Rev. 
Stats.,  §  2321,  April  26,  1882,  c.  106,  §  2. 


76  LAW   FOB   NOTARIES   PUBLIC. 

Affidavit  of  Work  on  Alaska  Mining  Claim. — A  notary  pub- 
lic may  take  the  affidavit  of  a  locator  or  owner  of  a  mining 
claim  in  Alaska  to  the  effect  that  he  has  performed  one  hun- 
dred dollars'  worth  of  labor  or  made  improvements  to  that 
amount  during  the  past  year :  U.  S.  Rev.  Stats.,  §  2324,  March 
2,  1907,  c.  2559. 

Affidavit  of  Claimant  to  Mining  Right. — A  notary  public 
may  take  the  affidavit  of  an  adverse  claimant  or  his  duly 
authorized  agent  to  a  mining  right  which  has  been  previously 
filed  on,  if  the  affiant  at  the  time  is  beyond  the  limits  of  the 
district  wherein  the  claim  is  situated :  U.  S.  Rev.  Stats.,  §  2326, 
April  26,  1882,  c.  106. 

Affidavits  and  Testimony  of  Mineral  Land  Proofs. — A 
notary  public  may  take  all  affidavits  concerning  mineral  lands 
and  all  testimony  and  proofs  may  be  taken  before  him,  and 
when  duly  certified  by  him  shall  have  the  same  force  and 
effect  as  if  taken  before  the  register  and  receiver  of  the  land 
office :  U.  S.  Rev.  Stats.,  §  2335,  May  10,  1872,  c.  152,  §  13. 

Oath  of  the  Collector  of  Duties. — A  notary  public  may  ad- 
minister the  oath  of  office  to  a  collector  of  duties.  The  col- 
lector administers  the  oath  to  all  his  subordinates:  IT.  S.  Rev. 
Stats.,  §  2617,  June  26,  1848,  c.  71,  §  6  j  §  2618,  February  8, 
1875,  c.  36,  §  11. 

Importer's  A ff davit. — A  notary  public  may  take  the  affi- 
davit to  an  account  of  an  importer  to  be  given  by  the  said 
importer  to  the  collector  of  the  district:  U.  S.  Rev.  Stats., 
§  2787,  March  2,  1905. 

Marine  Protest. — "If  any  vessel  from  any  foreign  port, 
compelled  by  distress  of  weather,  or  other  necessity,  shall 
put  into  any  port  of  the  United  States,  not  being  destined  for 
the  same,  the  master,  together  with  the  mate  or  person  next 
in  command,  may,  within  twenty-four  hours  after  her  arrival, 
make  protest  in  the  usual  form  upon  oath,  before  a  notary 
public  or  other  person  duly  authorized,  or  before  the  collector 
of  the  district  where  the  vessel  arrives,  setting  forth  the  cause 
or  circumstances  of  such  distress  or  necessity  ....":  U.  S. 
Rev.  Stats.,  §  2891,  March  2,  1799,  c.  22,  §  60. 


NOTARY  PUBLIC:  FUNCTIONS  AND   POWERS.  77 

Claims  Against  Departments. — ^A  notary  public  may  take 
the  oath  of  allegiance  and  to  support  the  constitution  of  the 
United  States  of  a  person  prosecuting  claims,  either  as  attor- 
ney or  on  his  own  account,  before  any  of  the  departments  or 
bureaus  of  the  United  States :  U.  S.  Rev.  Stats.,  §  3478,  July 
17,  1862,  c.  205,  §  1 ;  §  3479,  July  17,  1862,  c.  205,  §  2. 

Acknowledgments  to  Mortgages,  etc. — A  notary  public  may 
take  acknowledgments  to  bills  of  sale,  mortgages,  hypotheca- 
tions, conveyances,  discharges  of  mortgages  or  other  encum- 
brances of  any  vessel :  U.  S.  Rev.  Stats.,  §  4193,  March  3,  1865, 
c.  101,  §  1. 

Inspectors'  Oaths. — A  notary  public  may  administer  oaths 
to  inspectors  of  steam  vessels  when  they  verify  certificates  of 
inspection :  U.  S.  Rev.  Stats.,  §  4421,  June  11,  1906,  c.  3071. 

False  Acknowledgment:  Punishment. — ".  .  .  .  Every  per- 
son before  whom  any  declaration,  affidavit,  voucher,  or  other 
paper  or  writing  to  be  used  in  the  aid  of  the  prosecution  of 
any  claim  for  pension  or  bounty  land  or.  payment  thereof 
purports  to  have  been  executed  who  shall  knowingly  certify 
that  the  declarant,  affiant  or  witness  named  in  such  declara- 
tion, affidavit,  voucher,  or  other  paper  or  writing  personally 
appeared  before  him  and  was  sworn  thereto,  or  acknowledged 
the  execution  thereof,  when,  in  fact,  such  declarant,  affiant, 
or  witness  did  not  personally  appear  before  him  or  was  not 
sworn  thereto,  or  did  not  acknowledge  the  execution  thereof, 
shall  be  punished  by  a  fine  not  exceeding  five  hundred  dol- 
lars, or  by  imprisonment  for  a  term  of  not  more  than  five 
years":  U.  S.  Rev.  Stats.,  §  4746,  July  7,  1898,  c.  578. 

Patents:  Oaths. — A  notary  may  take  the  oath  of  an  appli- 
cant for  a  patent :  U.  S.  Rev.  Stats.,  §  4892,  March  3,  1903, 
c.  1019,  §  2. 

Patents:  Affidavits  and  Depositions. — A  notary  public  may 
take  affidavits  and  depositions  required  in  cases  pending  in 
the  patent  office :  U.  S.  Rev.  Stats.,  §  4905,  July  8,  1870,  c.  230, 
§43. 

Trademarks. — A  notary  public  may  take  the  affidavit  of  the 
applicant  for  the  registration  of  a  trademark ;  or  of  the  person 
filing  a  notice  in  opposition  to  the  registration  of  a  trademark ; 


78  LAW  FOR  NOTARIES  PUBLIC. 

likewise  he  may  take  the  acknowledgment  to  the  assignment  of 
a  trademark:  U.  S.  Rev.  Stats.,  §§  4937-4947,  Feb.  20,  1905, 
c.  592,  §§  2,  6,  10. 

Copyrights:  Printed  in  United  States. — A  notary  public 
may  take  the  affidavit  of  a  person  claiming  a  copyright  on  a 
book  that  the  book  was  printed  in  the  United  States:  U.  S. 
Rev.  Stats.,  tit.  60,  "Patents  and  Copyrights,"  c.  3,  §  16, 
March  4,  1909,  c.  320,  §  16. 

Bankruptcy. — "Sec.  20.  Oaths,  affirmations. — Oaths  re- 
quired by  this  act,  except  upon  hearings  in  court,  may  be 
administered  by  (2)  officers  authorized  to  administer  oaths  in 
proceedings  before  the  courts  of  the  United  States,  or  under 

the  laws  of  the  state  where  the  same  are  to  be  taken 

Any  person  conscientiously  opposed  to  taking  an  oath  may,  in 
lieu  thereof,  affirm.  Any  person  who  shall  affirm  falsely  shall 
be  punished  as  for  the  making  of  a  false  oath. ' ' 

"Sec.  1.  Meaning  of  words  and  phrases. — (17)  'Oath' 
sbaU  include  afidrmation":  U.  S.  Rev.  Stats.,  §§4972-5132, 
July  1,  1898,  c.  541,  §  20. 

Bankruptcy:  Depositions. — "The  right  to  take  depositions 
in  proceedings  under  this  act  shall  be  determined  and  enjo^^ed 
according  to  the  United  States  laws  in  force,  or  such  as  may 
be  hereafter  enacted  relating  to  the  taking  of  depositions,  ex- 
cept as  herein  provided":  U.  S.  Rev.  Stats.,  §§4972-5132, 
tit.  61,  "Bankruptcy,"  §  21b. 

Reports  of  National  Banks. — A  notary  public  may  admin- 
ister the  oath  or  affirmation  required  to  verify  the  returns 
made  by  the  president  or  cashier  of  a  national  bank  in  his 
five  yearly  reports  of  the  bank's  resources  and  liabilities  to 
the  controller  of  the  currency.  The  notary  administering 
the  oath  must  not  be  an  officer  of  the  bank:  U.  S.  Rev.  Stats., 
§  5211,  Feb.  26,  1881,  c.  82. 

Protest  of  National  Bank  Notes. — "Whenever  any  national 
banking  association  fails  to  redeem  in  lawful  money  of  the 
United  States  any  of  its  circulating  notes,  upon  demand  of 
payment  duly  made  during  the  usual  hours  of  business,  at 
the  office  of  such  association,  or  at  its  designated  place  of 
redemption,  the  holder  may  cause  the  same  to  be  protested  in 


NOTARY   PUBLIC:   FUNCTIONS  AND   POWERS.  79 

one  package,  by  a  notary  public,  unless  the  president  or 
cashier  of  the  association  whose  notes  are  presented  for  pay- 
ment, or  the  president  or  cashier  of  the  association  at  the 
place  at  which  they  are  redeemable  offers  to  waive  demand 
and  notice  of  the  protest,  and,  in  pursuance  of  such  offer, 
makes,  signs,  and  delivers  to  the  party  making  such  demand 
an  admission  in  writing,  stating  the  time  of  the  demand,  the 
amount  demanded,  and  the  fact  of  the  nonpayment  thereof. 
The  notary  public,  on  making  such  protest,  or  upon  receiving 
such  admission,  shall  forthwith  forward  such  admission  or 
notice  of  protest  to  the  controller  of  the  currency,  retaining 
a  copy  thereof.  If,  however,  satisfactory  proof  is  produced 
to  the  notary  public  that  the  payment  of  the  notes  demanded 
is  restrained  by  order  of  any  court  of  competent  jurisdiction, 
he  shall  not  protest  the  same.  When  the  holder  of  any  notes 
causes  more  than  one  note  or  package  to  be  protested  on  the 
same  day,  he  shall  not  receive  pay  for  more  than  one  pro- 
test": U.  S.  Rev.  Stats.,  §  5226,  June  3,  1864,  c.  106. 

Depositions  for  Interstate  Commerce  Commission. — A 
notary  may,  when  ordered  by  the  Interstate  Commerce  Com- 
mission, take  depositions  in  any  proceeding  or  investigation 
pending  before  the  commission  if  he  is  not  counsel  or  at- 
torney to  either  of  the  parties  nor  interested  in  the  event 
of  the  proceedings  or  investigation :  U.  S.  Rev.  Stats.,  tit. 
56A,  "Regulation  of  Interstate  and  Foreign  Commerce." 

Interstate  Commerce:  Carriers  and  Railroad  Owners'  Re- 
ports.— A  notary  public  may  administer  the  oaths  required 
to  verify  reports  of  common  carriers  and  owners  of  rail- 
roads engaged  in  interstate  commerce  in  their  annual  reports 
to  the  Interstate  Commerce  Commission:  U.  S.  Rev.  Stats., 
tit.  56A,  Interstate  Commerce,  c.  1,  §  20 ;  Amendment  of 
Feb.  4,  1887,  c.  104,  §  20. 

Taxes  on  Legacies. — A  notary  public  may  take  afl&davits  in 
matters  connected  with  taxes  on  legacies:  U.  S.  Rev.  Stats., 
c.  IIA,  "War  Revenue,"  April  12,  1902,  c.  500,  §  8. 

Agreement :  Carriers  and  Employees:  Interstate  Commerce 
Commission. — "See.  6.  That  every  agreement  of  arbitration 
under  this  act  shall  be  acknowledged  by  the  parties  before  a 


80  LAW  FOR  NOTARIES  PUBLIC. 

notary  public  or  clerk  of  a  district  or  circuit  court  of  the 
United  States,  and  when  so  acknowledged  a  copy  of  the  same 
shall  be  transmitted  to  the  chairman  of  the  Interstate  Com- 
merce Commission,  who  shall  file  the  same  in  the  office  of 
the  said  commission":  U.  S.  Rev.  Stats.,  tit.  56C,  "National 
Trade  Unions,"  June  1,  1898,  c.  370,  §6. 

False  Oaths:  Punishment. — "Sec.  31.  Whoever,  being  an 
officer  authorized  to  administer  oaths  or  to  take  and  certify 
acknowledgments,  shall  knowingly  make  any  false  acknowl- 
edgment, certificate,  or  statement  concerning  the  appearance 
before  him  or  the  taking  of  an  oath  or  affirmation  by  any 
person  with  respect  to  any  proposal,  contract,  bond,  under- 
taking, or  other  mat1;er,  submitted  to,  made  with,  or  taken 
on  behalf  of,  the  United  States  and  concerning  which  an  oath 
or  affirmation  is  required  by  law  or  regulation  made  in  pur- 
suance of  law,  or  with  respect  to  the  financial  standing  of 
any  principal,  surety,  or  other  party  to  any  such  proposal, 
contract,  bond,  undertaking,  or  other  instrument,  shall  be 
fined  not  more  than  two  thousand  dollars  or  imprisoned  not 
more  than  two  years,  or  both":  U.  S.  Rev.  Stats.,  tit.  70, 
"Crimes,"  c.  4,  March  4,  1909,  c.  321,  §  31. 

Besides  the  authority  given  a  notary  by  the  statutes 
enumerated  he  may  take  affidavits  if  he  is  so  authorized  by  a 
rule  of  the  court  or  by  a  regulation  of  the  head  of  a  depart- 
ment under  the  case  of  United  States  v.  Bailey,  9  Pet.  (U.  S.) 
230,  9  L.  ed.  113;  or  by  the  custom  of  a  department  under 
the  case  of  United  States  v.  Winchester,  2  McLean  (U.  S.), 
135,  Fed.  Cas.  No.  16,739. 

§  29.  Functions  and  Powers:  Under  the  Laws  of  Other 
States. — ^Having  discussed  the  powers  of  a  Washington 
notary  in  foreign  countries,  and  under  the  law-merchant 
and  likewise  the  statutory  powers  conferred  by  United 
States  statutes,  we  now  come  to  the  powers  which  are  con- 
ferred on  all  notaries  of  the  state  of  Washington  by  virtue 
of  statutes  in  other  states.  These  powers  will  be  taken  up 
under  five  heads:  First,  the  power  to  take  acknowledg- 
ments; secondly,  the  power  to  take  affidavits;  thirdly,  the 
power  to  take  depositions ;  fourthly,  the  power  to  administer 


NOTARY  PUBLIC:  FUNCTIONS  AND   POWERS.  81 

oaths;  fifthly,  the  powers  in  regard  to  negotiable  instru- 
ments. 

Under  the  first  topic,  the  power  of  a  notary  public  of 
"Washington  to  take  an  acknowledgment  to  be  used  in  some 
other  state,  we  must  first  state  that  the  power  to  take 
acknowledgments  is  not  one  incident  to  the  office  of  notary 
public.  Whenever  a  notary  has  that  power  a  statute  must 
confer  it.^  Most  of  the  states  provide  that  a  notary  of  an- 
other state,  when  authorized  by  the  laws  of  the  notary's 
state  to  take  acknowledgments  within  his  jurisdiction  may 
take  acknowledgments  within  his  jurisdiction  to  be  used 
in  the  sister  state,  provided  the  acknowledgment  is  accom- 
panied with  the  proper  authentication.^  Just  how  these 
acknowledgments  shall  be  taken  is  always  regulated  by  stat- 
ute. Therefore,  in  order  to  send  an  acknowledgment  in 
good  form  to  Texas,  so  that  it  would  pass  the  land  in  Texas, 
it  would  be  necessary  for  the  notary  of  Washington  to  obtain 
the  form  of  the  Texas  acknowledgment,  to  learn  its  proper 
place  on  the  instrument,  how  the  official  should  designate 
himself,  whether  a  seal  is  needed,  what  it  must  certify,  and 
any  and  all  other  requirements  which  may  be  set  forth  in 
the  Texas  statute.^  As  a  usual  custom  these  facts  would 
be  learned  through  a  Texas  attorney.  After  knowing  the 
requirements  of  the  Texas  statute  the  next  thing  is  to  follow 
them  explicitly;  that  means  in  every  detail.  If  the  Texas 
statute  should  say  that  the  grantor  shall  take  off  his  hat 
and  hold  up  his  left  hand  while  taking  the  acknowledg- 
ment, then  the  notary  should  have  the  grantor  take  off  his 
hat  and  hold  up  his  left  hand.  Before  a  notary  takes  an 
acknowledgment  in  Washington  to  pass  land  in  Texas  he 
should  be  sure  that  the  statutes  of  Texas  designate  a  notary 
of  another  state  as  an  officer  having  that  power. 

1  21  Am.  &  Eng.  Ency.  of  3  See  note  2.  The  forms  nee- 
Law,  2d  ed.,  p.  563;  vol.  1,  pp.  essary  to  follow  in  acknowledg- 
493,  500;  Bours  v.  Zachariah,  11  ments  and  any  particulars  of  the 
Cal.  281,  70  Am.  Dec.  779.  law  may  be  found  in  "Hubbell's 

2  21  Am.  &  Eng.  Ency.  of  Legal  Directory."  It  is  always 
Law,  2d  ed.,  p.  564;  also  vol.  1,  well  to  use  the  latest  edition;  it 
p.  501;   Goree  v.  Wadsworth,  91  is  published  every  year. 

Ala.  416,  8  South.  712. 


82  LAW  FOB  NOTARIES  PUBLIC. 

Secondly,  the  power  of  notaries  to  take  affidavits  is  also 
of  purely  statutory  origin,  but  has  been  conferred  in  most, 
if  not  all,  of  the  states.^  The  statutes  of  the  state  in  which 
the  affidavit  is  to  be  used  will  set  forth  the  fact  that  a 
notary  of  a  foreign  state  may  take  an  affidavit  to  be  used 
in  that  state,  provided  the  affidavit  is  accompanied  by  a 
certificate  setting  forth  the  fact  that  the  person  before 
whom  the  affidavit  was  taken  is  a  duly  authorized  and  com- 
missioned notary  public,  and  is  authorized  by  the  laws  of 
his  state  to  administer  oaths.^  In  some  states  a  certificate 
of  the  notary  himself  to  the  effect  that  he  is  authorized  to 
administer  oaths  is  sufficient.®  In  the  absence  of  such  a 
statute,  affidavits  sworn  to  before  a  nonresident  notary  will 
not  be  recognized^  The  stand  taken  by  the  Washington 
courts  can  be  found  in  Duggan  v.  Washington  Land  and 
Logging  Company,  [a] 

Thirdly,  the  power  of  notaries  to  take  depositions  within 
the  state  of  their  appointment  for  use  in  other  states  is 
purely  statutory.*  Reference  should  be  made  to  the  stat- 
utes of  the  state  to  which  they  desire  to  send  the  deposi- 
tions.^ These  statutes  generally  set  forth  that  depositions 
taken  by  notaries  of  other  states  may  be  used  where,  by  the 
laws  of  their  own  states,  the  power  to  take  depositions  is 
conferred  on  notaries.^"  Without  this  authorization  a  Wash- 
ington notary  would  have  no  authority  to  take  depositions 
for  use  in  other  states.^^ 

*  21    Am.     &     Eng.    Ency.    of  of  Law,  2d  ed.,  p.  566;  Midland 

Law,  2d  ed.,  p.  564;  Chandler  v.  Steel  Co.  v.  Citizens'  Nat.  Bank, 

Hanna,    73    Ala.    390;    Keefer   v.  34  Ind.  App.  107,  72  N.  E.  290; 

Mason,    36    111.    406;     Figge    v.  29  Cyc.  Law  &  Proc,  p.  1084. 
Eowlen,    186    111.    234,   57    N.    E.  »  See  note  8. 

195;    Teutonia   Loan    etc.    Co.   v.  lo  21    Am.    &     Eng.    Ency.    of 

Turrell,  19  Ind.  App.  469,  65  Am.  Law,  2d  ed.,  p.  566;   and  vol.  9, 

St.  Eep.  419,  49  N.  E.  852.  p.  298;  Greene  v.  Tally,  39  S.  C. 

6  21    Am.    &     Eng.     Ency.     of  338,  17  S.  E.  779. 
Law,  2d  ed.,  p.  565.  n  McCormick     v.     Largey,    1 

6  1  Ency.  PI.  &  Pr.,  p.  331.  Mont.    158;    Carter  v.   Ewing,  1 

T  Benedict    v.   Hall,   76   N.   C.  Tenn.  Ch.  212;   Lienpo  v.  State, 

113.  28  Tex.  App.   179,  12  S.  W.  588; 

8  In  T«  Turner,  71  Vt.  382,  45  21    Am.    &    Eng.    Ency.    of   Law, 

Atl.   754;   21  Am.  &  Eng.  Ency.  2d  ed.,  p.  566. 


NOTARY  PUBLIC:   FUNCTIONS  AND  POWERS.  83 

It  was  held  in  Patterson  v.  Patterson,^^  a  Vermont  case, 
that  a  deposition  cannot  be  used  in  a  foreign  state  when 
the  notary  is  not  authorized  by  the  laws  of  his  state  to  take 
depositions  for  use  in  other  states.  The  Washington  stat- 
ute ^^  says :  * '  Every  duly  qualified  notary  public  is  author- 
ized in  any  county  in  this  state  to  take  depositions  and 
affidavits,  and  administer  all  oaths  required  by  law  to  be 
administered."  It  is  quite  evident  that  our  statute  does  not 
set  out  the  fact  that  a  notary  may  take  depositions  in  Wash- 
ington to  be  used  in  foreign  states.  It  is,  therefore,  a  ques- 
tion whether  depositions  taken  here  in  Washington  could  be 
used  in  the  state  of  Vermont,  but  we  question  whether  this 
would  be  the  ruling  in  other  states.  The  Washington  stat- 
ute, as  stated  above,  and  Remington  and  Ballinger's  Code, 
sections  1236  and  1237,  taken  together,  must  be  considered 
in  this  connection,  however,  [b]   [c]   [d] 

Fourthly,  the  power  of  notaries  to  administer  oaths,  ex- 
cept those  necessarily  taken  in  the  transaction  of  commer- 
cial affairs,  does  not  pertain  to  the  office  by  usage  or 
custom.^*  Whenever  a  notary,  with  the  one  exception  just 
stated,  has  the  power  to  administer  oaths,  it  must  be  found 
in  a  statute.  It  has,  however,  been  very  generally  con- 
ferred by  statute.^^  There  is  a  conflict  of  authority  on  the 
question  whether  one  state  will  presume  that  a  notary  of 
another  state  has  the  authority  to  administer  oaths.  Ala- 
bama, Georgia,  Illinois,  Indiana  and  Michigan  courts  hold 
that  no  such  presumption  arises,  while  Maryland,  Minne- 
sota and  the  District  of  Columbia  courts  hold  there  is  such 
a  presumption.^®  The  matter  has  never  been  passed  on  in 
Washington. 

Fifthly,  in  regard  to  the  powers  of  notaries  of  Washing- 
ton over  negotiable  instruments,  not  by  reason  of  the  law- 
merchant,  but  by  the  statutory  provisions  of  foreign  states, 

12  1   D.   Chip.    (Vt.)    200.  160,  46  N.  W.  436;  Trevor  v.  Col- 

13  Laws    1890,    p.    474,    §  4;    1  gate,  181  111.  129,  54  N.  E.  909; 
H.    C,    §332;    Bal.    Code,    §248;  29  Cyc.  Law  &  Proc,  p.  108S. 
Bern.   &  Bal.   Code,   §  8298.  is  21    Am.    &     Eng.    Ency.    of 

14  21    Am.    &     Eng.     Ency.    of  Law,  2d  ed.,  p.  567. 
Law,  2d  ed.,  p.  567;  Berkery  r.  16  See  note  15. 
Wayne   Circuit   Judge,   82   Mich. 


84  LAW  FOE  NOTARIES  PUBLIC. 

the  notary  will,  of  course,  have  to  examine  the  statutes  of 
the  state  into  which  the  protest  is  to  go.  However,  as  the 
statute  of  Washington  in  regard  to  bills  and  notes  and  the 
protest  thereof  is  as  nearly  perfect  as  any  passed  by  sister 
states,  it  will  be  safe  to  say  that  if  a  notary  receives  a 
foreign  bill  or  note  to  protest,  the  best  rule  he  can  take 
to  follow  is  the  Washington  statute  as  to  negotiable  instru- 
ments, which  will  be  found  under  the  subject  of  "Protests, 
etc.,"  page  207. 

We  only  wish  to  add  in  this  connection  that  all  affidavits 
and  acknowledgments  taken  in  Washington  to  be  used  in 
some  sister  state  should  be  accompanied  with  the  certificate 
of  a  county  clerk  or  the  secretary  of  state  authenticating 
the  signature  and  authority  of  the  notary.^'^ 

[a]  In  Walter  Duggan  et  al.,  Eespondents,  v.  The  Washington  Land 
and  Logging  Company,  Appellant,  10  Wash.  84,  38  Pac.  856  (Novem- 
ber, 1894),  Mr.  Justice  Stiles  says:  "The  objection  to  the  verification 
of  the  lien  notices  is  overruled.  It  was  made  in  the  state  of  Oregon, 
before  a  notary  public  who  certifies  the  jurat  with  his  oflScial  seal. 
It  is  true  that  the  propriety  of  admitting  affidavits  taken  before 
notaries  in  a  foreign  jurisdiction  has  been  denied  by  courts  whose 
decisions  are  entitled  to  great  weight,  on  the  ground  that  while  the 
authority  of  notaries  to  certify  protests  of  commercial  paper,  etc.,  is 
found  in  the  common  law,  their  right  to  administer  oaths  springs 
entirely  from  statute:  Johnson  v.  McGehee,  1  Ala.  186;  Keefer  v. 
Mason,  36  111.  406;  Benedict  v.  Hall,  76  N.  C.  113.  But,  on  the  other 
hand,  courts  of  equal  weight  hold  that  by  reason  of  the  now  universal 
custom  in  this  country  and  England,  to  permit  these  officers  to  take 
and  certify  affidavits,  the  same  verity  should  be  accorded  to  a  jurat 
attested  by  a  notarial  seal  as  is  given  to  a  certificate  in  a  matter 
pertaining  to  the  law-merchant:  Pinkham  v.  Cockell,  77  Mich.  265, 
43  N.  W.  921;  Conolly  v.  Riley,  25  Md.  402;  Stephens  v.  Williams,  46 
Iowa,  540;  Silver  v.  Kansas  City  etc.  E.  R.  Co.,  21  Mo.  App.  5;  Wood 
V.  St.  Paul  etc.  R.  E.  Co.,  42  Minn.  411,  44  N.  W.  308,  7  L.  R.  A.  149. 
The  last-named  case  contains  a  satisfactory  statement  of  the  reasons 
for  the  modern  doctrine.  In  Harris  v.  Barber,  129  U.  S.  366,  9  Sup. 
Ct.  Rep.  314,  32  L.  ed.  697,  the  federal  supreme  court  seems  to  have 
assented  to  the  same  proposition.  It  seems  difficult  to  discern  any 
good  reason  for  denying  the  sufficiency  of  an  affidavit  which  is  in- 
tended to  furnish  the  basis  of  the  record  of  a  lien  notice,  because  the 

17  For  copies  of  the  certificates  the  secretary  of  state,  see  pages 
furnished   by   county   clerks   and      60  and  62. 


NOTARY   PUBLIC:   FUNCTIONS  AND   POWERS.  85 

verification  is  made  before  a  foreign  notary,  when  by  our  statute 
(Gen.  Stats.,  §  1432),  the  certificate  of  the  same  oiBcer  to  an  acknowl- 
edgment of  a  deed  is  expressly  recognized,  and  authorizes  the  record 
of  the  instrument." 

[b]  "Any  witness  may  be  subpoenaed  and  compelled,  by  any  officer 
authorized  to  take  depositions,  to  appear  and  give  his  deposition  at 
any  place  within  twenty  miles  of  the  abode  of  such  witness,  in  like 
manner  as  he  may  be  subpoenaed  and  compelled  to  attend  as  a  wit- 
ness in  any  court,  and  he  shall  suffer  the  same  penalties  for  a  failure 
to  attend  as  are  prescribed  in  section  1220":  Laws  1891,  p.  35,  §  9; 
2  H.  C,  §  1670;  Bal.  Code,  §  6021;  1  Eem.  &  Bal.  Code,  §  1235. 

[c]  "The  superior  court  shall  have  power  to  compel  the  attendance 
of  witnesses,  within  this  state,  before  notaries  public,  justices  of  the 
peace  or  any  other  person  authorized  by  the  laws  of  this  state  to  take 
depositions  in  causes  pending  in  any  court  of  the  state,  or  in  any 
court  of  any  other  state,  or  in  any  court  of  the  United  States,  or  in 
ajiy  court  of  a  foreign  country":  Laws  1901,  p.  23,  §  1;  1  Kem.  &  Bal. 
Code,  §  1236. 

[d]  In  Matter  of  the  Petition  of  N.  W.  Bolster,  "Washington  Deci- 
sions, vol.  17,  No.  11,  p.  425  (August  26,  1910),  the  superior  court  of 
the  state  of  California  in  a  cause  pending  therein  issued  a  commission 
authorizing  and  empowering  a  Washington  notary  to  take  the  deposi- 
tions of  certain  witnesses  and  to  require  them  to  produce  certain  books 
and  papers.  On  the  receipt  of  the  commission,  the  commissioner 
caused  a  subpoena  to  be  issued  to  the  witness  E.  J.  Mathews  requir- 
ing the  witness  to  appear  before  him  at  a  certain  time  and  place  to 
testify  pursuant  to  the  commission,  and  also  to  bring  and  produce 
before  the  commissioner,  certain  books,  papers  and  documents  belong- 
ing to  the  John  J.  Sesnon  Company.  The  witness  obeyed  the  sub- 
poena in  so  far  as  to  attend  in  person,  but  refused  to  bring  the  books 
and  other  documents  described  in  the  subpoena.  The  commissioner 
thereupon  applied  to  the  superior  court  of  King  county  asking  that 
court  to  require  the  witness  to  attend  before  him  with  the  documents 
mentioned.  The  court,  however,  after  a  hearing,  refused  to  grant  the 
application  and  dismissed  the  proceedings,  on  the  ground  that  the 
documents  sought  were  "trade  secrets  of  the  John  J.  Sesnon  Company, 
and  as  such  ....  privileged."  The  order  of  dismissal  was  appealed 
from  and  reversed  by  department  one  of  the  supreme  court.  The  court 
held  that  sections  1236  and  1237  of  Eemington  and  Ballinger's  Code 
authorized  the  court  to  compel  the  attendance  of  the  witness  before 
the  notary.  The  question  whether  the  Washington  statute  gives  a 
notary  of  this  state  the  power  to  take  depositions  in  this  state  to  be 
used  in  other  states  was  not  considered  in  the  case:  Read  Rem.  &  Bal. 
Code,  §§  1236,  1237  and  8298  together  with  this  decision. 


86  LAW  FOB  NOTARIES  PUBLIC. 

§  30.  Functions  and  Powers:  Under  the  Laws  of  Wash- 
ington.— We  now  come  to  the  powers  of  a  notary  in  Wash- 
ington. The  Laws  of  1890  ^  set  out  these  explicitly,  so  that 
we  know  he  can  "transact  and  perform  all  matters  and 
things  relating  to  protests,  protesting  bills  of  exchange  and 
promissory  notes,  and  such  other  duties  as  pertain  to  that 
office  by  the  custom  and  laws  merchant.*'  In  other  words,  all 
the  powers  he  previously  had  under  the  law-merchant  he 
now  enjoys  by  statute.  He  may  also  take  acknowledgments 
of  all  deeds  and  other  instruments  of  writing,  and  certify 
the  same  in  the  manner  required  by  law.  He  may  take 
depositions  and  affidavits,  and  administer  all  oaths  required 
by  law  to  be  administered.  The  Washington  statute  also 
sets  out  that  every  attorney  at  law  who  is  a  notary  public 
may  administer  any  oath  to  his  client,  and  no  pleading  or 
affidavit  shall,  on  that  account,  be  held  by  any  court  to  be 
improperly  verified,  [a]  This  section  was  cited  in  Spokane 
&  Idaho  Lumber  Co.  v.  Loy,  21  Wash.  501,  58  Pac.  672,  60 
Pac.  1119,  and  McLean  v.  Roller,  33  Wash.  166,  73  Pac.  1123. 

[a]  "Every  duly  qualified  notary  public  is  authorized  in  any  county 
in  this  state, — 

"1.  To  transact  and  perform  all  matters  and  things  relating  to  pro- 
tests, protesting  bills  of  exchange  and  promissory  notes,  and  such 
other  duties  as  pertain  to  that  office  by  the  custom  and  laws  mer- 
chant; 

"2.  To  take  acknowledgments  of  all  deeds  and  other  instruments  of 
writing,  and  certify  the  same  in  the  manner  required  by  law; 

"3.  To  tak«  depositions  and  affidavits,  and  administer  all  oaths  re- 
quired by  law  to  be  administered;  and  every  attorney  at  law  who  is 
a  notary  may  administer  any  oath  to  his  client,  and  no  pleading  or 
affidavit  shall,  on  that  account,  be  held  by  any  court  to  be  improperly 
verified":  Laws  1890,  p.  474,  §  4;  1  H.  C,  §  332;  Bal.  Code,  §  248; 
2  Rem.  &  Bal.  Code,  §  8298. 

1  The  notarial  law  was  passed  It  is  referred  to  in  this  book  in 
December  21,  1889,  but  is  always  that  way  so  as  not  to  confute  the 
referred  to  as  "Laws  1890,  p.  474."      reader. 


NOTARY  PUBLIC:  DISQUALIFICATIONS:  DUTIES,  ETC.  87 


CHAPTER  V. 

THE  NOT ABY  PUBLIC:  DISQUALIFICATIONS:  DUTIES,  ETC. 

§  32.  Disqualifications:    Acknowledgments:    Affidavits:    Depositions: 

Oaths:    Protests. 

§  33.  Duties  and  Liabilities:  In  General:  His  Bond. 

§  34.  Duties  and  Liabilities:  Limitation  of  Actions. 

§  35.  Duties  and  Liabilities:  Criminal. 

§  36.  Eecords:  Notary  must  Keep. 

§  37.  Eecords:  Deposited  in  County  Clerk's  Office  on  Death,  Eesig- 

nation  or  Eemoval. 

§  38.  Eecords:  As  Evidence. 

§  39.  Fees. 

§  40.  Eemoval. 

§  41.  Delegation  of  Authority. 

§  42.  Notaries  de  Facto:  Definition. 

§  43.  Notaries  de  Facto:  Are  Their  Acts  Valid? 

§  44.  Notaries  ex  Officio. 

§  32.  Disqualifications:  Acknowledgments:  Affidavits: 
Depositions:  Oaths:  Protests. — Though  a  person  may  be 
eligible  to  hold  the  office  of  notary  he  may  be  disqualified 
to  act  in  certain  cases  by  reason  of  having  an  interest  in 
the  case.^  The  degree  of  interest  which  will  render  the 
notary  incompetent  cannot  be  summed  up  in  any  rule  which 
will  operate  as  a  safe  test  in  every  case ;  each  case  must  be 
decided  on  its  own  facts  and  particular  circumstances.^  To 
state  the  rule  broadly:  If  the  notary  is  a  party  to  or  directly 
and  pecuniarily  interested  in  the  transaction,  he  is  not 
capable  of  acting  in  that  case.^  For  example,  a  notary  who 
is  a  grantee  or  mortgagee  in  a  conveyance  or  mortgage  is 
disqualified  to  take  the  acknowledgment  of  the  grantor  or 
mortgagor;*  likewise  a  notary  who  is  a  trustee  in  a  deed  of 

1  1  Am.  &  Eng.  Ency.  of  Law  A.  434;  Leonhard  v.  Flood,  68 
&  Proc,  p.  860;  Horbach  v.  Ark.  162,  56  S.  "W.  781;  1  Am.  & 
Tyrrell,  48  Neb.  514,  67  N.  W.  Eng.  Ency.  of  Law  &  Proc,  p. 
485,  489,  37  L.  E.  A.  434;  Green  862. 

V.  Abraham,  43  Ark.  420;  29  Cyc.  »  See  notes  1  and  2. 

Law  &  Proc,  p.  1092.  •*  Lee  v.  Murphy,  119  Cal.  364, 

2  Horbach  v.  Tyrrell,  48  Neb.  51  Pats.  549,  955;  1  Am.  &  Eng. 
514,  67  N.  W.  485,  489,  37  L.  E.  Ency.   of    Law,  2d    ed.,   p.   493; 


68 


LAW  FOB  NOTARIES  PUBLIC. 


trust;"  and,  of  course,  a  notary  who  is  the  grantor  could 
not  take  his  own  acknowledgment.®  A  notary  beneficially 
interested  in  the  conveyance  by  way  of  being  secured  there- 
by is  not  competent  to  take  the  acknowledgment  of  the 
instrument  f  but  where  there  are  several  grantees  in  a  deed, 
each  taking  a  separate  and  definite  interest,  the  acknowl- 
edgment of  the  deed  by  one  of  the  grantees  as  a  notary 
will  be  valid  as  to  all  the  grantees  except  himself.^  In 
Washington  the  courts  have  held  that  an  officer  of  a  cor- 
poration may  take  the  acknowledgment  of  a  mortgage  of 
which  the  corporation  is  a  party,  notwithstanding  the  fact 
that  the  said  officer  was  the  one  who  conducted  the  nego- 
tiations for  the  corporation,  [a]  And  where  the  notary  has 
no  beneficial  interest  in  the  instrument,  he  is  not  disqualified 
from  taking  an  acknowledgment  by  reason  of  the  fact  that 
he  is  the  agent  or  attorney  of  one  of  the  parties.^  In  Wash- 
ington and  most  of  the  states  it  is  held  that  relationship  will 
not  disqualify  a  notary  from  taking  acknowledgments  of 
conveyances,  as  in  so  doing  he  acts  as  a  ministerial  and  not 
a  judicial  officer.^"  [b] 


Wasson  r.  Connor,  54  Miss.  351; 
West  V.  Krebaum,  88  111.  2G3; 
Armstrong  v.  Combs,  15  N.  Y. 
App.  I>iv.  246,  44  N.  Y.  Supp. 
171;  Murray  v.  Tulare  Irr.  Co., 
120  Cal.  311,  49  Pac.  563,  52  Pac. 
586. 

5  1  Am.  &  Eng.  Ency.  of  Law, 
2d  ed.,  p.  493;  Darst  v.  Gale,  83 
111.  136;  Dail  v.  Moore,  51  Mo. 
589. 

6  Davis  V.  Beazley,  75  Va.  491; 
Penn  v.  Garvin,  56  Ark.  511,  20 
S.  W,  410;  Leftwich  v.  Rich- 
mond, 100  Va.  164,  40  S.  E.  651. 

T  Leonhard  v.  Flood,  68  Ark. 
162,  56  S.  W.  781. 

8  Murray  v.  Tulare  Irr.  Co., 
120  Cal.  311,  49  Pac.  563,  52  Pac. 
586. 

9  Woodland  Bank  v.  Oberhaus, 
125  Cal.  320,  57  Pac.  1070;  1  Am. 


&  Eng.  Ency.  of  Law,  2d  ed., 
p.  493;  Havemeyer  v.  Dahn,  48 
Neb.  536,  58  Am.  St.  Rep.  706, 
67  N.  W.  489,  33  L.  R.  A.  332. 

10  See  §  12;  1  Am.  &  Eng. 
Ency.  of  Law,  2d  ed.,  p.  494; 
Penn  v.  Garvin,  56  Ark.  511,  20 
S.  W.  410;  Gibson  v.  Norway 
Sav.   Bank,   69  Me.   579. 

"Law  Notes"  for  October,  1909, 
in  its  column  of  humor  has  the 
following: 

"A  Remarkable  Feat. — On  rec- 
ord in  Bosque  county,  Texas,  is  a 
deed  in  which  the  separate  ac- 
knowledgment of  the  feme  covert 
grantor  was  taken  by  her  hus- 
band, a  justice  of  the  peace,  who 
duly  certified  under  his  hand 
and  official  seal  that  he  exam- 
ined her  privily  and  apart  from 
her   husband." 


NOTABT  PUBLIC:   DISQUALIFICATIONS:   DUTIES,   ETC.  89 

In  the  case  of  affidavits  the  law  governing  the  Washing- 
ton notary  is  in  the  form  of  a  statute.  In  1889  the  present 
notaries  public  law  was  passed;  it  says  that  ''every  attorney 
at  law  who  is  a  notary  public  may  administer  any  oath  to 
his  client,  and  no  pleading  or  affidavit  shall,  on  that  account, 
be  held  by  any  court  to  be  improperly  verified."  [c] 

And  it  has  been  decided  in  two  Washington  cases  that  a 
surety  on  a  bond  who  is  a  notary  public  may  take  the  affi- 
davit of  the  other  sureties  required  by  the  statute.  The 
court  based  its  decision  in  both  cases  on  the  theory  that  the 
act  of  a  notary  in  administering  the  oath  is  purely  minis- 
terial, [d]   [e] 

It  may  be  said  that  generally  a  notary  is  incompetent  to 
take  depositions  when  he  is  interested  in  any  way  in  the 
suit  for  which  the  deposition  is  being  taken;"  the  same  rule 
applies  when  the  notary  is  a  near  relative  of  any  of  the 
parties  to  the  suit;^^  or  if  he  is  the  law  partner  of  one  of 
the  parties,^^  or  the  stenographer  of  one  of  the  party's 
attorney.^* 

Because  the  administration  of  an  oath  is  purely  minis- 
terial, the  fact  that  an  officer  administering  it  is  interested 
in  the  proceeding  in  which  it  is  to  be  used  does  not  dis- 
qualify him.^^ 

11  21  Am,  &  Eng.  Eney.  of  Eeed  v.  Newcomb,  62  Vt.  75,  19 
Law,  2d  ed.,  p.  571;  vol.  9,  p.  Atl.  367,  it  was  held  that  a  dep- 
305;  Tillinghast  v.  Walton,  5  Ga.  osition  was  not  objectionable  on 
335;  Glanton  v.  Griggs,  5  Ga,  the  ground  that  it  was  taken  be- 
424;  McLean  v.  Adams,  45  Hun  fore  a  notary  who  was  second 
(N.    Y.),     189;      former      agent:  cousin  to  the  plaintiff. 

Smith  V.  Smith,  2  Greenl.   (Me.)  13  Dodd  v.  Northrop,  37  Conn. 

408;  former  appearance  as  coun-  216. 

sel:   Whicher  v.  Whicher,   11   N.  14  Knickerbocker    Ice     Co,     v. 

H.  348;  Cutler  v.  Maker,  41  Me.  Gray,  165  Ind.  140,  72  N.  E.  869, 

594;  partner  of  counsel:  Dodd  v.  6  Ann.  Cas.  607. 

Northrop,    37    Conn.    216;    Floyd  15  Peck  v.  People,  153  HI.  454, 

V.  Eice,  28  Tex.  341.  39  N.  E.  117;  McChesney  v.  Chi- 

12  9  Am.  &  Eng.  Ency.  of  Law,  cago,  159  111.  223,  42  N.  E.  894; 
2d  ed.,  p.  305;  uncle:  Bean  v.  Lamagdelaine  v.  Tremblay,  162 
Quimby,  5  N.  H.  94;  brother  in  Mass.  339,  39  N.  E.  38.  See 
law:  Bryant  v.  Ingraham,  16  Linck  v.  Litchfield,  141  111.  469, 
Ala.  116;  within  sixth  degree:  31  N.  E.  123;  Yeagley  v,  Webb, 
CaU  V.  Pike,  66  Me.  350;  but  in  86  Ind.  424. 


90  LAW  FOR  NOTARIES  PUBLIC. 

In  the  matter  of  the  interest  or  relationship  of  the  notary 
in  protesting  bills  and  notes  it  would  seem  that  it  does  not 
invalidate  the  protest,  though  the  notary  is  the  son  of  the 
holder/®  the  cashier  of  a  bank  to  which  the  paper  belongs/*^ 
or  the  maker  of  a  note  and  cashier  of  a  bank  to  which  the 
note  belonged.^® 

[a]  In  the  case  of  Keene  Guaranty  Savings  Bank,  Respondent,  ▼. 
Abram  E,  Lawrence,  Appellant,  32  Wash.  572  (September,  1903),  an 
action  was  brought  against  Lawrence  to  foreclose  a  certain  mortgage 
on  lots  in  the  city  of  North  Yakima.  Prior  to  the  commencement  of 
the  foreclosure  suit  Lawrence  had  instituted  an  action  to  cancel  the 
same  mortgage  as  a  cloud  upon  his  title.  The  two  actions  were  con- 
solidated and  tried  as  one,  and  from  a  judgment  against  Lawrence 
an  appeal  was  taken.  It  appears  in  the  facts  of  the  case  that  one 
Thomas  owned  the  property  in  question  in  1889;  that  in  July  of  that 
year  he  conveyed  to  one  Cadwell.  A  number  of  changes  took  place 
which  it  ia  not  necessary  to  go  into,  but  it  appears  that  on  the  six- 
teenth day  of  December,  1889,  Cadwell  made  a  mortgage  to  the  Mason 
Mortgage  Loan  Company  for  ten  thousand  dollars  upon  this  property, 
the  mortgage  being  acknowledged  before  Allen  C.  Mason  as  a  notary 
public,  he  at  the  time  being  president  of  the  mortgage  company. 
Later  on  Lawrence  bought  the  property  when  sold  by  decree  of  the 
court  and  got  a  sheriff's  deed.  The  Keene  Bank,  however,  held  a  mort- 
gage which  was  not  canceled.  The  court  said:  "The  validity  of  the 
mortgage  to  the  Mason  Mortgage  Loan  Company  is  attacked  on  the 
ground  that  the  acknowledgment  of  the  mortgagor  was  taken  before 
a  notary  public,  who  was  also  at  the  same  time  the  president  and 
chief  executive  of5cer  of  the  mortgage  company,  and  who  conducted 
the  negotiations  leading  up  to  the  loan.  The  mere  fact  that  the 
notary  in  this  case  was  an  officer  and  stockholder  in  the  corporation 
to  whom  the  mortgage  was  executed  would  not  preclude  his  taking  the 
acknowledgment  of  the  mortgagor.  The  taking  of  an  acknowledgment 
by  a  notary  public  is  a  ministerial  act,  and  may  be  performed  by  any- 
one qualified  to  act  as  notary." 

[b]  In  Cora  E,  Nixon,  Appellant,  v.  Mary  D.  Post  et  al.,  Eespondents, 
13  Wash.  181,  43  Pae.  23  (December,  1895),  the  question  arose  as  to 
the  validity  of  the  acknowledgment  of  a  grantor  when  the  grantee 
is  the  wife  of  the  person  taking  the  acknowledgment.  Mr,  Chief 
Justice  Hoyt  said:  "Upon  the  question  as  to  the  nature  of  the  title 
conveyed  by  such  deed  must  also  depend  the  further  question  pre- 

i«  Eason  v.  Isbell,  42  Ala.  456.  W  Dykman    v.    Northridge,     1 

17  Nelson    v.    Killingley    First  N.   Y.    App.   Div.   26,  3€    N.   Y. 

Nat.  Bank,  69  Fed.  798,  16  C.  C.  Supp.  962. 

A.  425. 


NOTARY  PUBLIC:   DISQUALIFICATIONS:   DUTIES,  ETC.  91 

Rented  by  the  appellant  as  to  the  right  of  the  husband  to  take  an 
acknowledgment  of  a  deed  in  which  his  wife  was  named  as  grantee. 
It  is  not  claimed  that  he  could  not  properly  take  such  acknowledg- 
ment if  the  property  waa  deeded  to  the  wife  under  such  circumstances 
that  it  became  her  separate  estate.  Hence  the  determination  of  the 
nature  of  the  title  conveyed  by  the  deed  will  also  determine  the  ques- 
tion as  to  the  regularity  of  the  acknowledgment The  superior 

court  properly  found  that  the  deed  had  been  duly  executed  and  de- 
livered by  the  plaintiff  and  her  husband  to  the  defendant  Mary  D. 
Post,  and  that  the  circumstances  surrounding  the  making  and  the 
delivery  were  such  that  the  title  conveyed  vested  in  her  as  her  sepa- 
rate estate." 

[c]  "Every  duly  qualified  notary  public  is  authorized  in  any  county 
in  this  state, —  ....  3.  To  take  depositions  and  affidavits,  and 
administer  all  oaths  required  by  law  to  be  administered;  and  every 
attorney  at  law  who  is  a  notary  public  may  administer  any  oath  to 
his  client,  and  no  pleading  or  affidavit  shall,  on  that  account,  be  held 
by  any  court  to  be  improperly  verified":  Laws  1890,  p.  474,  §  4;  1  H. 
C,  §  332;  Bal.  Code,  §  248;  2  Eem.  &  Bal.  Code,  §  8298. 

[d]  In  the  case  of  Spokane  and  Idaho  Lumber  Company  v.  Loy, 
21  Wash.  501,  58  Pac.  672,  60  Pac.  1119  (October,  1899),  an  action 
was  brought  by  the  respondent  against  the  principal  and  his  sureties 
in  a  statutory  bond  given  by  a  contractor,  who  agreed  to  construct  a 
public  bridge  in  and  for  the  city  of  Spokane,  to  recover  a  balance 
alleged  to  be  due  for  lumber  sold  and  delivered  to  such  contractor. 
From  a  joint  judgment  in  favor  of  the  plaintiff  and  against  all  the 
defendants,  three  of  the  surety  defendants  appealed  to  the  supreme 
court.  One  of  the  reasons  set  out  in  moving  the  court  to  strike  from 
the  files  the  appeal  and  supersedeas  bond  and  to  affirm  the  judgment 
of  the  court  below  was  that  the  affidavit  of  the  sureties  attached 
thereto  was  insufficient  in  that  the  affidavit  of  the  sureties  Julia  G. 
Kimball  and  August  Use  were  taken  before  the  other  surety,  Hinkle. 
At  page  505,  Mr.  Justice  Anders  says:  "The  objection  to  the  bond  on 
the  ground  of  insufficient  execution  is  not  well  taken.  It  appears 
that  one  of  the  sureties  in  the  appeal  bond  was  a  notary  public,  and 
as  such  took  the  affidavits  of  the  other  sureties  required  by  the  statute, 
and  it  ia  insisted  by  the  learned  counsel  for  the  respondent  that  the 
bond  is  invalid  upon  that  account.  But  we  think  counsel's  position 
is  clearly  untenable.  The  statute  (Bal.  Code,  §  248)  provides  that 
'every  duly  qualified  notary  public  is  authorized  in  any  county  in  this 
state  to  take  depositions  and  affidavits  and  administer  all  oaths  re- 
quired by  law  to  be  administered';  and,  in  our  opinion,  the  notary 
who  took  the  affidavits  of  two  of  his  cosureties  was  not  disqualified, 
under  the  statute,  by  any  interest  he  himself  had  in  the  bond.  The 
rubstance  of  the  affidavit  of  the  sureties  in  such  bonds  is  prescribed 
by  law,  and  the  act  of  the  notary  in.  administering  the  oath  is  purely 


92  LAW  FOR  NOTARIES  PUBLIC. 

ministerial,  and  is  not  affected  by  his  interest  therein:  Lynch  v.  Liv- 
ingston, 6  N.  Y.  422;  Kuhland  v.  Sedgwick,  17  Cal.  123;  Reavis  v. 
Cowell,  56  Cal.  588.  Besides,  in  this  case  the  sureties  attended  before 
the  court  and  justified  at  the  instance  of  the  respondent.  The  motion 
to  dismiss  the  appeal  for  the  reasons  specified  must  be  denied." 

[e]  In  the  case  of  Henry  McLean,  Appellant,  v.  Floyd  H.  EoUer, 
Respondent,  33  Wash.  166,  73  Pac.  1123  (October,  1903),  an  appeal 
was  taken  from  an  order  of  the  superior  court  in  and  for  Skagit 
county,  appointing  Floyd  H.  EoUer,  and  refusing  to  appoint  Henry 
McLean,  administrator  of  the  estate  of  Emma  Roller,  deceased.  Mr. 
Justice  Anders,  at  page  168,  says:  "It  appears  that  the  principal  in 
the  appeal  bond,  as  notary  public,  took  the  affidavits  of  the  sureties 
attached  to  the  bond,  and  for  that  reason  and  on  that  ground  the 
respondent  moves  to  dismiss  the  appeal  in  this  cause.  In  Spokane  and 
Idaho  Lumber  Co.  v.  Loy,  21  Wash.  501,  58  Pac.  672,  60  Pac.  1119, 
one  of  the  sureties  in  the  appeal  bond,  being  a  notary  public,  took  the 
affidavit  of  the  other  sureties  required  by  the  statute,  and  for  that 
reason  it  was  contended  that  the  bond  was  insufficient,  and  that  the 
appeal  should  be  dismissed.  In  relation  to  the  motion,  which  was 
denied,  we  said:  'The  statute  (Bal.  Code,  §  248)  provides  that  every 
duly  qualified  notary  public  is  authorized  in  any  county  in  this  state 
....  to  take  depositions  and  affidavits  and  administer  all  oaths  re- 
quired by  law  to  be  administered;  and,  in  our  opinion,  the  notary 
who  took  the  affidavits  of  two  of  his  cosureties  was  not  disqualified, 
under  the  statute,  by  any  interest  he  himself  had  in  the  bond.  The 
substance  of  the  affidavit  of  the  sureties  in  such  bonds  is  prescribed 
by  law,  and  the  act  of  the  notary  in  administering  the  oath  is  purely 
ministerial,  and  is  not  affected  by  his  interest  therein.'  For  the  rea- 
sons stated  in  the  opinion  in  that  case,  the  motion  to  dismiss  this 
appeal  is  denied." 

§  33.    Duties  and  Liabilities:  In  General:  His  Bond. — It 

may  be  said  that  a  notary  owes  his  clients  the  general  duty 
of  integrity,  diligence  and  skill;  it  is  the  notary's  duty  to 
inform  himself  of  the  facts  to  which  he  intends  to  certify 
and  not  to  rely  on  hearsay.^  The  bond  which  he  gives  to 
the  state  of  Washington,  a  copy  of  which  is  set  out  in  a 
previous  section,^  says  that  he  shall  "faithfully  discharge 

1  In  Stork  v.  American  Surety  Proc,  p.    101;    Fogarty    v.    Fin- 
Co.,  109  La.  713,  33   South.  742,  lay,  10  Cal.  239,  70  Am.  Dec.  714; 
the  court  said:  "In  accepting  the  Gage  v.  Dubuque  etc.  R.  R.  Co., 
offica,"   a   notary   "contracts   the  11  Iowa,  310,  77  Am.  Dec.  145. 
obligation  to  fill   it  intelligently  2  §  19. 
and   honestly":    29    Cyc.   Law   & 


NOTARY  PUBLIC:   DISQUALIFICATIONS:   DUTIES,  ETC.  93 

the  duties  of  his  said  ofifice  according  to  law  and  shall  faith- 
fully discharge  the  duties  of  his  said  office  according  to 
any  laws  which  may  be  enacted  subsequent  to  the  execu- 
tion" of  the  bond.  For  any  breach  of  the  conditions  of 
the  bond  he  and  his  sureties  will  be  liable  to  an  action.^ 
In  Schmitt  v.  Drouet,*  the  court  said:  "Before  a  notary 
and  his  surety  can  be  held,  it  is  necessary,  therefore,  to 
determine  whether  the  act  done  or  not  done,  committed  or 
omitted,  was  or  not  authorized  by  law,  was  or  not  incumbent 
upon  him,  was  or  was  not  required  of  him,  whether  he  was 
directed  to  do  it,  whether  he  has  failed  to  discharge  the 
duty,  and  whether  injury  has  been  sustained."  But  we 
should  add  here  that  when  a  notary  undertakes  to  perform 
a  certain  act,  he  thereupon  assumes  certain  responsibilities 
which,  if  he  does  not  carry  out  by  reason  of  dishonesty,  lack 
of  diligence  or  want  of  skill,  and  his  client  is  thereby  in- 
jured, he  is  liable  for  damages.  The  measure  of  such  dam- 
ages will  be  the  loss  sustained  by  reason  of  the  notary's 
wrongful  act  or  omission.^  In  a  ]\Iissouri  case  ^  it  was  held 
that  a  notary's  bond  is  strictly  a  bond  of  indemnity,  that 
substantial  damages  cannot  be  recovered  thereon  if  not 
suffered.  By  the  law  of  1869  the  official  bond  of  a  notary  is 
deemed  a  security  to  the  state,  and  also  to  all  persons  sev- 
erally, for  the  official  delinquencies  against  which  it  is 
intended  to  provide,  [a]  When  a  notary  or  his  sureties 
become  liable  on  his  bond,  any  person  injured  by  such  mis- 
conduct or  neglect,  or  who  is  by  law  entitled  to  the  benefit 
of  the  security,  may  maintain  an  action  at  law  thereon  in 

3  29    Cyc.    Law    &    Proc,    p.  test);  People  v.  Butler,  74  Mich. 

1104;    Heidt   v.   Minor,    113    Cal.  643,  42  N.  W.  273   (false  eertifi- 

385,  45  Pac.  700  (false  certificate  cate  of  acknowledgment), 
of  acknowledgment);   Fogarty  v.  ■*  42   La.    Ann.    1064,    1067,    21 

Finlay,  10  Cal.  239,  70  Am.  D€C.  Am.  St.  Eep.  408,  8  South.  396. 
714    (defective  certificate  of  ac-  5  29    Cyc.     Law     &    Proc,    p. 

knowledgment) ;     Tevis    v.    Ran-  1105;    McAllister   v.   Clement,   75 

dall,    6     Cal.    632,    65    Am.    Dec.  Cal.   182,   16  Pac.   775;   Mahoney 

547    (failure    to    give    notice    of  v.  Dixon,  31  Mont.  107,  77  Pac. 

protest    to    indorsers) ;    Wheeler  519. 

V.    State,   9    Heisk.    (Tenn.)    393  «  State   v.   Thompson,  81    Mo. 

(failure   to    give    notice    of    pro-  App.  549. 


94  LAW  FOR  NOTARIES  PUBLIC. 

his  own  name  against  the  notary  and  his  sureties  to  recover 
the  amount  to  which  he  may  by  reason  thereof  be  entitled,  [b] 
Before  an  individual  begins  such  an  action  he  must  obtain 
leave  of  the  court,  or  the  judge  thereof,  where  the  action  is 
triable,  and  upon  such  application  must  produce  a  certified 
copy  of  the  bond  and  an  affidavit  of  the  plaintiff,  or  of  some 
person  in  his  behalf,  showing  the  delinquency,  [c]  Nor  is  a 
judgment  for  one  delinquency  a  bar  to  another  action  even 
by  the  same  party,  [d]  A  statute  protects  the  surety  from 
being  compelled  to  pay  more  than  one  thousand  dollars,  [e] 

[a]  "The  official  bond  of  a  public  officer  to  the  state,  or  to  any 
county,  city,  town,  or  other  municipal  or  public  corporation  of  like 
character  therein,  shall  be  deemed  a  security  to  the  state,  or  to  such 
county,  city,  town,  or  other  municipal  or  public  corporation,  as  the 
case  may  be,  and  also  to  all  persons  severally,  for  the  official  delin- 
quencies against  which  it  is  intended  to  provide":  Laws  1869,  p.  152, 
§  592;  Cd.  1881,  §  652;  2  H.  C,  §  694;  Bal.  Code,  §  5684;  1  Eem.  & 
Bal.  Code,  §  958. 

[b]  "When  a  public  officer  by  official  misconduct  or  neglect  of  duty 
shall  forfeit  his  official  bond,  or  render  his  sureties  therein  liable  upon 
such  bond,  any  person  injured  by  such  misconduct  or  neglect,  or  who 
is  by  law  entitled  to  the  benefit  of  the  security,  may  maintain  an 
action  at  law  thereon  in  his  own  name  against  the  officer  and  his 
sureties  to  recover  the  amount  to  which  he  may  by  reason  thereof  be 
entitled":  Laws  1869,  p.  152,  §  593;  Cd.  1881,  §  653;  2  H.  C,  §  695, 
Bal.  Code,  §  5685;  1  Eem.  &  Bal.  Code,  959. 

[c]  "Before  an  action  can  be  commenced  by  a  plaintiff,  other  than 
the  state,  or  the  municipal  or  public  corporation  named  in  the  bond, 
leave  shall  be  obtained  of  the  court,  or  judge  thereof,  where  the  action 
is  triable.  Such  leave  shall  be  granted  upon  the  production  of  a  cer- 
tified copy  of  the  bond,  and  an  affidavit  of  the  plaintiff,  or  some  per- 
son in  his  behalf,  showing  the  delinquency.  But  if  the  matter  set 
forth  in  his  affidavit  be  such  that,  if  true,  the  party  applying  would 
clearly  not  be  entitled  to  recover  in  the  action,  the  leave  should  not 
be  granted.  If  it  does  not  appear  from  the  complaint  that  the  leave 
herein  provided  for  has  been  granted,  the  defendant,  on  motion,  shall 
be  entitled  to  judgment  of  nonsuit;  if  it  does,  the  defendant  may  con- 
trovert the  allegation,  and  if  the  issue  be  found  in  his  favor,  judg- 
ment shall  be  given  accordingly":  Laws  1869,  p.  154,  §  594;  Cd.  1881, 
§654;  2  H.  C,  §696;  Bal.  Code,  §  5686;  1  Rem.  &  Bal.  Code,  §  960. 

[d]  "A  judgment  in  favor  of  a  party  for  one  delinquency  shall  not 
preclude  the  same  or  another  party  from  maintaining  another  action 
on  the  same  bond  for  another  delinquency":  Laws  1869,  p.  153,  §  595; 


NOTARY  PUBLIC:   DISQITALIFICATIONS :   DUTIES,  ETC.  95 

Ca.  1881,  §  655;  2  H.  C,  §  697;  Bal.  Code,  §  5687;  1  Kem.  &  Bal.  Code, 
§  961. 

[e]  "In  an  action  upon  an  official  bond,  if  judgments  have  been  re- 
covered against  the  surety  therein  other  than  by  confession,  equal  in 
the  aggregate  to  the  penalty,  or  any  part  thereof,  of  such  bond,  and  if 
such  recovery  be  established  on  the  trial,  judgment  shall  not  be  given 
against  such  surety  for  an  amount  exceeding  such  penalty,  or  such  por- 
tion thereof  as  is  not  already  recovered  against  him" :  Laws  1869,  p.  153, 
i  596;  Cd.  1881,  §  656;  2  H.  C,  §  698;  Bal.  Code,  §  5G88;  1  Eem.  &  Bal. 
Code,  §  962. 

§  34.  Duties  and  Liabilities:  Limitation  of  Actions. — 
As  the  usual  contract  made  by  a  person  with  a  notary  is  an 
unwritten  one,  the  statute  of  limitations  would  bar  any 
action  brought  three  years  after  the  cause  of  action  shall 
have  accrued.^  [a]  [b]  It  would  be  possible,  although  probably 
it  seldom  has  been  done,  for  a  person  to  make  a  written 
contract  with  a  notary.  In  such  a  case  the  statute  of  limi- 
tations would  not  bar  an  action  if  brought  within  six 
years,  [a]  [c]  In  the  case  of  an  action  for  relief  on  the  ground 
of  fraud,  the  cause  of  action  is  not  deemed  to  have  accrued 
until  the  discovery  by  the  aggrieved  party  of  the  facts  con- 
stituting the  fraud,  [a]  [d]  The  time  during  which  an  action 
might  be  brought  against  a  notary  would  also  be  extended 
if  the  person  entitled  to  bring  the  action  were  at  the  time 
the  cause  of  action  accrued  either  under  the  age  of  twenty- 
one  years,  or  insane,  or  imprisoned  on  a  criminal  charge, 
or  in  execution  under  the  sentence  of  a  court  for  a  term 
less  than  his  natural  life,  [e]  The  surety  on  the  bond  would 
be  held,  as  a  general  rule,  if  the  action  is  maintainable 
against  the  notary,  for  the  bond  reads  that  if  the  notary  does 
not  faithfully  discharge  the  duties  of  his  office  the  bond 
is  to  remain  in  full  force  and  effect.^  [f] 

[a]  "Actions  can  only  be  commenced  within  the  periods  herein  pre- 
scribed after  the  cause  of  action  shall  have  accrued,  except  when  in 
special  cases  a  different  limitation  is  prescribed  by  statute;  .  .     .  ": 

1  Spokane  County  v.  Prescott,  2  gee,  also,  in  this  connection, 

19   Wash.   418,   67  Am.   St.   Eep.       1  Rem.  &  Bal.  Code,  §§  168,  170- 
733,  53  Pac.  661.  175. 


96  LAW  FOB  NOTARIES  PUBLIC. 

Laws  1891,  p.  90,  §1;  2  H.  C,  §111;  Bal.  Code,  §4796;  Eem.  &  Bal. 
Code,  §  155. 

Note  [a]  is  to  be  read  in  connection  -with  notes  [b],  [c]  and  [d]. 

[b]  "Within  three  years, — 3.  An  action  upon  a  contract  or  liability, 
express  or  implied,  which  is  not  in  writing,  and  does  not  arise  out  of 
any  written  instrument":  Laws  1869,  p.  8,  §  28;  Cd.  1881,  §  28;  2  H.  C, 
§  115;  Bal.  Code,  §  4800;  1  Eem.  &  Bal.  Code,  §  159. 

[c]  "Within  six  years, — 2.  An  action  upon  a  contract  in  writing,  or 
liability  express  or  implied  arising  out  of  a  written  instrument":  Laws 
1854,  p.  363,  §  3;  Cd.  1881,  §  27;  2  H.  C,  §  113;  Bal.  Code,  §  4798;  1 
Eem.  &  Bal.  Code,  §  157. 

[d]  "Within  three  years, — 4.  An  action  for  relief  upon  the  ground  of 
fraud,  the  cause  of  action  in  such  case  not  to  be  deemed  to  have  accrued 
until  the  discovery  by  the  aggrieved  party  of  the  facts  constituting  the 
fraud":  Laws  1869,  p.  8,  §  28;  Cd.  1881,  §  28;  2  H.  C,  §  115;  Bal. 
Code,  §  4800;  1  Eem.  &  BaL  Code,  §  159. 

[e]  "If  a  person  entitled  to  bring  an  action  mentioned  in  this  chapter, 
except  for  a  penalty  on  forfeiture,  or  against  a  sheriff  or  other  officer, 
for  an  escape,  be,  at  the  time  the  cause  of  action  accrued,  either  under 
the  age  of  twenty-one  years,  or  insane,  or  imprisoned  on  a  criminal 
charge,  or  in  execution  under  the  sentence  of  a  court  for  a  term  less 
than  his  natural  life,  the  time  of  such  disability  shall  not  be  a  part  of 
the  time  limited  for  the  commencement  of  action":  Laws  1869,  p.  10, 
S  38;  Cd.  1881,  §  37;  2  H.  C,  §  124;  Bal.  Code,  §  4809;  1  Eem.  &  Bal. 
Code,  §  169. 

[f]  See  §  19  for  copy  of  the  bond. 

§  35.    Duties  and  Liabilities:  Criminal. — ^By  the  law  of 

1909 [a]  the  words  "officer"  and  "public  officer"  include 
all  assistants,  deputies,  clerks  and  employees  of  any  public 
officer,  and  all  persons  exercising  or  assuming  to  exercise 
any  of  the  powers  or  functions  of  a  public  officer.  By  this 
act,  then,  all  notaries^  and  those  who  act  as  notaries  would 
be  amenable  to  the  law.  By  the  same  act  the  notary  must 
not  mutilate,  destroy  or  falsify  any  of  his  records;  if  he 
does,  he  lays  himself  liable  to  imprisonment  in  the  state 
penitentiary  for  not  more  than  ten  years  or  to  a  fine  of  five 
thousand  dollars,  or  both,  by  one  section,  [b]  and  is  guilty 
of  a  gross  misdemeanor  by  another,  [c]  By  the  same  act  a 
notary  will   be   guilty   of   a   misdemeanor  if   he   willfully 

1  A  notary  is  a  public  officer:  See  §  11. 


NOTARY  PUBLIC:   DISQUALIFICATIONS:   DUTIES,  ETC.  97 

neglects  the  duties  enjoined  on  Mm  by  law.[d]  By  the 
same  act  he  is  guilty  of  a  gross  misdemeanor  if  for  a  reward 
he  permits  another  to  perform  any  of  his  duties,  [e]  By  the 
same  act  he  is  guilty  of  bribery  should  he  ask,  or  receive, 
directly  or  indirectly,  any  compensation,  gratuity  or  reward 
for  violating  his  official  duty  in  any  action  or  proceeding, 
and  is  liable  to  imprisonment  in  the  state  penitentiary  for 
ten  years,  or  to  a  fine  of  five  thousand  dollars,  or  both.[f] 
By  the  same  act  he  is  guilty  of  forgery  in  the  first  degree, 
the  punishment  of  which  is  imprisonment  in  the  state  peni- 
tentiary for  not  more  than  twenty  years  ^  for  willfully  cer- 
tifying falsely  to  an  acknowledgment  or  proof  [g]  ;  and  of 
a  gross  misdemeanor  for  making  a  false  certificate  [h]  or  a 
false  report. [i]  By  the  same  act,  for  making  a  false  ship's 
protest  with  intent  to  defraud  another  he  may  be  impris- 
oned in  the  state  penitentiary  for  five  years,  fined  one  thou- 
sand dollars,  or  both,  [j]  By  the  same  act,  a  person  who 
is  applying  for  appointment  as  a  notary,  but  willfully  exer- 
cises any  of  the  functions  before  having  duly  qualified,  is 
guilty  of  a  gross  misdemeanor,  [k]  By  the  same  act,  a 
notary  who  asks  or  receives,  or  agrees  to  receive,  a  fee  or 
other  compensation  for  his  ofiicial  service  in  excess  of  the 
fee  allowed  to  him  by  statute  is  guilty  of  a  misdemeanor.  [1] 
By  the  same  act,  ,a  person  who  falsely  personates  a  notary 
and  subscribes,  verifies  or  acknowledges  an  instrument  which 
may  be  recorded  with  intent  that  the  same  be  issued  as  true 
shall  be  imprisoned  in  the  state  penitentiary  for  not  more 
than  ten  years  ;[m]  or  if  a  person  falsely  personates  a 
notary  and  purports  to  do  an  ofiicial  act,  whereby  another 
is  injured  or  defrauded,  he  is  guilty  of  a  gross  misde- 
meanor, [n]  By  the  same  act,  a  notary,  convicted  of  any 
felony  or  malfeasance  in  ofiice,  forfeits  his  office  and  can 
never  afterward  hold  a  public  ofiice  in  the  state  of  "Wash- 
ington, [o]  By  the  .law  of  1891  prosecutions  for  offenses, 
the  punishment  of  which  may  be  imprisonment  in  the  peni- 
tentiary, must  be  within  three  years  after  their  commis- 
sion and  for  all  others  (excepting  murder  and  arson  where 

S  Laws  1909,  p.  990,  S  331;  1  Bern.  &  Bal.  Code,  §  2583. 
7 


98  LAW   FOR   NOTARIES   PUBLIC. 

death  ensues),  within  one  year  after  their  commission. [p]  * 
A  notary's  records  are  protected  from  mutilation  by  others 
by  the  new  criminal  law.  [q]  For  federal  criminal  statutes, 
see  pages  77  and  80. 

[a]  "In  construing  the  provisions  of  this  act,  save  when  otherwise 
plainly  declared  or  clearly  apparent  from  the  context,  the  following  rules 
shall  be  observed:  (24)  the  words  'officer*  and  'public  officer'  shall  in- 
clude all  assistants,  deputies,  clerks  and  employees  of  any  public  officer 
and  all  other  persons  exercising  or  assuming  to  exercise  any  of  the  powers 
or  functions  of  a  public  officer":  Laws  1909,  p.  902,  §  51;  1  Rem.  &  Bal. 
Code,  §  2303. 

[b]  "Every  officer  who  shall  mutilate,  destroy,  conceal,  erase,  obliter- 
ate or  falsify  any  record  or  paper  pertaining  to  his  office,  or  who  shall 
fraudulently  appropriate  to  his  own  use  or  to  the  use  of  another  per- 
son, or  secrete  with  the  intent  to  appropriate  to  such  use,  any  money, 
evidence  of  debt  or  other  property,  intrusted  to  him  by  virtue  of  his  office, 
shall  be  punished  by  imprisonment  in  the  state  penitentiary  for  not  more 
than  ten  years,  or  by  a  fine  of  not  more  than  five  thousand  dollars,  or 
by  both":  Laws  1909,  p.  919,  §  96;  1  Rem.  &  Bal.  Code,  §  2348. 

[c]  "Every  person  who  shall  willfully  or  maliciously  destroy,  alter, 
erase,  obliterate  or  conceal  any  letter,  telegraph  message,  book  or  record 
of  account,  or  any  writing  or  instrument  by  which  any  claim,  privilege, 
right,  obligation  or  authority,  or  any  right  or  title  to  property,  real  or 
personal,  is,  or  purports  to  be,  or  upon  the  happening  of  some  future 
event  may  be,  evidenced,  created,  acknowledged,  transferred,  increased, 
diminished,  encumbered,  defeated,  discharged  or  affected,  shall  be  guilty 
of  a  gross  misdemeanor":  Laws  1909,  p.  1020,  §  408;  1  Rem.  &  Bal. 
Code,  §  2660. 

[d]  "Whenever  any  duty  is  enjoined  by  law  upon  any  public  officer 
or  other  person  holding  any  public  trust  or  employment,  their  willful 
neglect  to  perform  such  duty,  except  where  otherwise  specially  provided 
for,  shall  be  a  misdemeanor":  Laws  1909,  p.  894,  §  16;  1  Rem,  &  Bal. 
Code,  §  2  268. 

[e]  "Every  public  officer  who,  for  any  reward,  consideration  or  gratuity 
paid  or  agreed  to  be  paid,  shall,  directly  or  indirectly,  grant  to  another 

8  "A    person    convicted    of    a  "Every   person   convicted  of   a 

misdemeanor  ....  shall  be  pun-  gross  misdemeanor  ....  shall  be 

ished    by    imprisonment     in     the  punished  by  imprisonment  in  the 

county   jail    for   not     more    than  county    jail    for    not    more    than 

ninety  days,  or  by  a  fine  of  not  one    year,    or    by    a    fine    of    not 

more  than  two  hundred  and  fifty  more  than  one  tholisand  dollars, 

dollars":    Laws    1909,    p.    894,    §  or  by  both":   Laws   1909,  p.   894, 

14:  1  Rem.  &  Bal.  Code,  §  2266.  §  15;  1  Rem.  &  Bal.  Code,  §  2267. 


9062 


NOTARY   PUBLIC:   DISQUALIFICATIONS:   DUTIES,   ETC.  99 

the  right  or  authority  to  discharge  any  function  of  his  office,  or  permit 
another  to  perform  any  of  his  duties,  shall  be  guilty  of  a  gross  misde- 
meanor" :  Laws  1909,  p.  916,  §  83 ;  1  Rem.  &  Bal.  Code,  §  2335. 

[f]  "Every  judicial  officer,  and  every  person  who  executes  any  of  the 
functions  of  a  public  office  not  hereinbefore  specified,  and  every  person 
employed  by  or  acting  for  the  state  or  for  any  public  officer  in  the  busi- 
ness of  the  state,  who  shall  ask  or  receive,  directly  or  indirectly,  any 
compensation,  gratuity  or  reward,  or  any  promise  thereof,  upon  an  agree- 
ment or  understanding  that  his  vote,  opinion,  judgment,  action,  decision 
or  other  official  proceeding  shall  be  influenced  thereby,  or  that  he  will  do 
or  omit  any  act  or  proceeding  or  in  any  way  neglect  or  violate  any  offi- 
cial duty,  shall  be  punished  by  imprisonment  in  the  state  penitentiary  for 
not  more  than  ten  years,  or  by  a  fine  of  not  more  than  five  thousand  dol- 
lars, or  by  both":  Laws  1909,  p.  911,  §  69;  1  Rem.  &  Bal.  Code,  §  2321. 

[g]  "Every  officer  authorized  to  take  a  proof  or  acknowledgment  of 
an  instrument  which  by  law  may  be  recorded,  who  shall  willfully  certify 
falsely  that  the  execution  of  such  instrument  was  acknowledged  by  any 
party  thereto,  or  that  the  execution  thereof  was  proved,  shall  be  guilty 
of  forgery  in  the  first  degree":  Laws  1909,  p.  991,  §  332;  1  Rem,  &  Bal, 
Code,  I  2584. 

[h]  "Every  public  officer  who,  being  authorized  by  law  to  make  or 
'  give  a  certificate  or  other  writing,  shall  knowingly  make  and  deliver 
as  true  such  a  certificate  or  writing  containing  any  statement  which 
he  knows  to  be  false,  in  a  case  where  the  punishment  thereof  is  not 
expressly  prescribed  by  law,  shall  be  guilty  of  a  gross  misdemeanor": 
Laws  1909,  p.  927,  §  128;  1  Rem.  &  Bal.  Code,  §  2380. 

[i]  "Every  public  officer  who  shall  knowingly  make  any  false  or 
misleading  statement  in  any  official  report  or  statement,  under  circum- 
stances not  otherwise  prohibited  by  law,  shall  be  guilty  of  a  gross 
misdemeanor":  Laws  1909,  p.  920,  §  98;   1  Rem.  &  Bal.  Code,  §  2350. 

[j]  "Every  person  who  shall  prepare,  make  or  subscribe  a  false  or 
fraudulent  manifest,  invoice,  bill  of  lading,  ship's  register,  or  protest, 
with  intent  to  defraud  another,  shall  be  punished  by  imprisonment  in 
the  state  penitentiary  for  not  more  than  five  years  or  by  a  fine  of  not 
more  than  one  thousand  dollars,  or  by  both":  Laws  1909,  p.  1009,  §  383; 
1  Rem.  &  Bal.  Code,  §  2635. 

[k]  "Every  person  who  shall  falsely  personate  or  represent  anv 
public  officer,  or  who  shall  intrude  himself  into  a  public  office  to  whicli 
he  has  not  been  duly  elected  or  appointed,  or  who  shall  willfully  ex- 
ercise any  of  the  functions  or  perform  any  of  the  duties  of  such  of- 
ficer, without  having  duly  qualified  therefor,  as  required  by  law,  or 
who,  having  been  an  executive  or  administrative  officer,  shall  willfully 
exercise  any  of  the  functions  of  his  office  after  his  right  to  do  so  has 
ceased,  or  wrongfully  refuse  to  surrender  the  official  seal  or  any  books 


100  LAW  FOB  NOTARIES  PUBLIC. 

or  papers  appertaining  to  such  oface,  upon  the  demand  of  his  lawful 
successor,  shall  be  guilty  of  a  gross  misdemeanor":  Laws  1909,  p,  916, 
§  84;  1  Bern.  &  Bal.  Code,  §  2336. 

[1]  "Every  public  officer  who  shall  ask  or  receive,  or  agree  to  receive 
a  fee  or  other  compensation  for  his  official  service,  either — (1)  In 
excess  of  the  fee  or  compensation  allowed,  to  him  by  statute  therefor 
....  commits  extortion  and  is  guilty  of  a  misdemeanor":  Laws  1909, 
p.  1001,  §  360;  1  Kern.  &  Bal.  Code,  §  2612. 

[m]  "Every  person  who  shall  falsely  personate  another,  and  in 
such  assumed  character,  shall — (4)  Subscribe,  verify,  publish,  acknowl- 
edge or  approve  a  written  instrument  which  by  law  may  be  recorded, 
with  intent  that  the  same  may  be  delivered  or  issued  as  true;  or  (6) 
Do  any  other  act  in  the  course  of  any  action  or  proceeding  wherein, 
if  it  were  done  by  the  person  falsely  personated  such  person  might 
in  any  event  'become  liable  to  an  action  or  special  proceeding,  civil 
or  criminal,  or  to  pay  a  sum  of  money,  or  to  incur  a  charge,  for- 
feiture, or  penalty,  or  whereby  any  benefit  might  accrue  to  the  offender 
or  to  any  other  person":  Laws  1909,  p.  1003,  §  363;  1  Kcm.  &  Bal. 
Code,  §  2615. 

[n]  "Every  person  who  shall  falsely  personate  a  public  officer,  civil 
or  military,  ....  and  in  such  assumed  character  shall  do  any  act 
purporting  to  be  official,  whereby  another  is  injured  or  defrauded,  shall' 
be  guilty  of  a  gross  misdemeanor":  Laws  1909,  p.  1003,  §  364;  1  Bem. 
&  Bal.  Code,  §  2616. 

[o]  "The  conviction  of  a  public  officer  of  any  felony  or  malfeasance 
in  office  shall  entail,  in  addition  to  such  other  penalty  as  may  be  im- 
posed, the  forfeiture  of  his  office,  and  shall  disqualify  him  from  ever 
afterwards  holding  any  public  office  in  this  state":  Laws  1909,  p.  900, 
§  37;  1  Bem.  &  Bal.  Code,  §  2289. 

[p]  "Prosecutions  for  the  offenses  of  murder  and  arson,  where  death 
ensues,  may  be  commenced  at  any  period  after  the  commission  of  the 
offense;  for  offenses  the  punishment  of  which  may  be  imprisonment  in 
the  penitentiary,  within  three  years  after  their  commission;  and  for 
all  other  offenses,  within  one  year  after  their  commission:  Provided, 
that  any  length  of  time  during  which  the  party  charged  was  not 
usually  and  publicly  resident  within  this  state  shall  not  be  reckoned 
within  the  one  and  three  years  respectively":  Laws  1891,  p.  46,  §  2; 
2  H.  C,  §  1188;  Bal.  Code,  9  6780;  1  Bern.  &  Bal.  Code,  §  2005. 

[q]  "Every  person  who  shall  willfully  and  unlawfully  remove,  alter, 
mutilate,  destroy,  conceal  or  obliterate  a  record,  map,  book,  paper, 
document  or  other  thing  filed  or  deposited  in  a  public  office,  or  with 
any  public  officer,  by  authority  of  law,  shall  be  punished  by  imprison- 
ment in  the  state  penitentiary  for  not  more  than  five  years,  or  by  a 


NOTARY   PUBLIC:    DISQUALIFICATIONS:    DUTIES,   ETC.        101 

fine  of  not  more  than  one  thousand  dollars,  or  by  both":  Laws  1909, 
p.  919,  §  95;  Eem.  &  Bal.  Code,  §  2347. 

§  36.  Records :  Notary  must  Keep. — ^Every  notary  should 
keep  an  official  book,  and  in  this  he  should  enter  all  mat- 
ters in  connection  with  his  office  which  may  be  of  importance 
at  some  later  time.  While  the  Washington  statute  does  not 
designate  matters  in  general,  it  does  specify  that  all  notaries 
shall  keep  a  true  record  of  all  notices  of  protest  given  or 
sent  by  him,  with  the  time  or  manner  in  which  the  same 
were  given  or  sent,  and  the  names  of  all  the  parties  to  whom 
the  same  were  given  or  sent,  with  the  copy  of  the  instru- 
ment in  relation  to  which  the  notice  is  served,  and  of  the 
notice  itself,  [a]  This  book  immediately  becomes  a  public 
record  of  the  state,  and  the  notary,  as  such,  has  no  property 
in  it.^  As  was  seen  under  the  topic  of  "Criminal  Law,"^ 
he  will  be  held  responsible  for  the  records  which  he  may 
from  time  to  time  make  as  a  public  officer, 

^  [a]  "Every  notary  public  is  required  to  keep  a  true  record  of  all 
notices  of  protest  given  or  sent  by  him,  with  the  time  and  manner 
in  which  the  same  were  given  or  sent,  and  the  names  of  all  the  par- 
ties to  whom  the  same  were  given  or  sent,  with  the  copy  of  the  instru- 
ment in  relation  to  which  the  notice  is  served,  and  of  the  notice  itself 
....":  Laws  1890,  p.  474,  §  6;  1  H.  C,  §  334;  Bal.  Code,  §  250;  2  Rem. 
&  Bal.  Code,  §  8300. 

§  37.  Records:  Deposited  in  County  Clerk's  Office  upon 
Death,  Resignation  or  Removal. — On  the  death  of  a  notary 
or  on  his  resignation  or  removal  from  office,  or  at  the  ex- 
piration of  his  term  of  office,  provided  his  commission  is  not 
renewed,  all  his  records  and  official  papers,  within  three 
months,  shall  be  deposited  in  the  office  of  the  county  clerk 

1  Under    a    statute    providing  State  v.  Theard,  45  La.  Ann.  680, 

that     the   custodian    of    notarial  12  South.  892;  State  v.  Laresche, 

records  shall  hold  the  records  of  24  La.  Ann.  148;  Opinion  of  Jus- 

every    notary,    in    the    parish    of  tices,   150    Mass.   586,   23    N.   E. 

Orleans,   functus    officio,  it    was  850,  6  L.  B.  A.  842;  The  Gallego, 

held  that  a  notary,  son  of  a  de-  30    Fed.     271,    275;     McAfee   v. 

ceased   notary,   had   no    right    to  Doremus,  5  How.   (U.  S.)   53,  12 

the  notarial  records  of  his  father  L.   e<l.   46. 

either  as  his  son  or  as  a  notary:  2  §35,  note  [b]. 


102  LAW   FOR  NOTARIES  PUBLIC. 

of  the  county  from  which  said  notary  was  appointed.  If 
a  notary,  on  his  resignation  or  removal  from  office,  neglects 
for  the  period  of  three  months  to  so  deposit  his  records,  he 
shall  forfeit  a  sum  not  exceeding  one  thousand  dollars,  which 
may  be  recovered  in  a  civil  action  by  any  person  injured  by 
such  neglect.  And  if  upon  the  death  of  a  notary  his  execu- 
tor or  administrator  fails  within  three  months  after  his 
appointment  to  so  deposit  the  deceased  notary's  records  and 
official  papers  with  the  county  clerk  of  the  county  in  which 
said  notary  was  appointed,  he  shall  forfeit  a  like  amount, 
which  may  be  recovered  in  a  civil  action  by  any  person 
injured  by  such  neglect,  [a] 

[a]  "On  the  death,  resignation,  or  removal  from  office,  and  at  the 
expiration  of  the  term  of  office,  of  any  notary  public,  provided  hia 
commission  is  not  renewed,  his  records  and  all  his  official  papers  shall, 
within  three  months  therefrom,  be  deposited  in  the  office  of  the  county 
clerk  of  the  county  from  which  such  notary  shall  have  been  appointed, 
and  if  any  notary  public,  on  his  resignation  or  removal  from  office, 
shall,  for  the  space  of  three  months,  neglect  to  so  deposit  his  records, 
he  shall  forfeit  a  sum  not  exceeding  one  thousand  dollars,  to  be  re-* 
covered  in  a  civil  action  by  any  person  injured  by  such  neglect,  and 
it  shall  be  the  duty  of  the  executor  or  administrator  of  the  estate 
of  any  notary  public,  deceased,  to  deposit  the  records  and  official 
papers  of  such  notary  with  the  said  clerk,  and  within  three  months 
after  his  appointment,  under  like  penalty":  Laws  1890,  p.  475,  §  7; 
1  H.  C,  §  335;  Bal.  Code,  §  251;  2  Eem.  &  Bal.  Code,  §  8301. 

§  38.  Records:  As  Evidence. — Full  faith  and  credit  are 
generally  given  to  attestations  of  notaries  public,  especially 
in  connection  with  commercial  affairs.^  And  when  by  rea- 
son of  death  or  removal  the  records  are  in  the  keeping  of 
others  than  the  notary  himself,  the  record  itself  or  a  copy 
of  the  same  duly  certified  is  generally  accepted.^  In  a 
Mississippi  case  the  record  of  an  absent  foreign  notary 
proved  by  the  deposition  of  a  person  in  whose  custody  it 
had  been  left  during  the  notary's  absence  was  admitted  in 

1  21  Am.  &  Eng.  Ency.  of  Mass.  586,  23  N.  E.  850,  6  L.  B. 
Law,  2d  ed.,  p.  575;  Hill  v.  Nor-  A.  842;  Phillips  v.  Poindexter. 
ris,  2  Ala.  640;  Spegail  v.  Per-  18  Ala.  579;  Bryden  v.  Taylor,  2 
kins,  2  Root   (Conn.),  274.  Har.  &  J..  (Md.)  396,  3  Am.  Dec. 

2  Opinion     of       Justices,     150  554;  The  Gallego,  30  Fed,  271. 


NOTARY  PUBLIC:   DISQUALIFICATIONS:   DUTIES,  ETC.        103 

evidence.'  In  Washington  the  statute  says  that  the  record 
of  protest  made  by  a  notary,  or  a  copy  thereof,  duly  cer- 
tified under  the  hand  and  seal  of  the  notary  public,  or 
county  clerk  having  the  custody  of  the  original  record,  shall 
be  competent  evidence  to  prove  the  facts  therein  stated,  but 
the  same  may  be  contradicted  by  other  competent  evi- 
dence, [a]  And  it  has  been  held  also  that  a  notary's  records, 
not  treated  as  official,  may  be  used  to  refresh  the  memory 
of  the  notary  when  he  testifies  as  a  witness.® 

[a]  "Said  record  (of  protest),  or  a  copy  thereof,  duly  certified  under 
the  hand  and  seal  of  the  notary  public,  or  county  clerk  having  the 
custody  of  the  original  record,  shall  be  competent  evidence  to  prove 
the  facts  therein  stated,  but  the  same  may  be  contradicted  by  other 
competent  evidence":  Laws  1890,  p.  474,  §  6;  1  H.  C,  §  334;  Bal.  Code, 
§  250  J  2  Rem.  &  Bal.  Code,  §  8300. 

§  39.  Fees. — In  Washington  the  fees  a  notary  is  allowed 
are  all  set  out  in  full. [a]  "A  notary  is  not  entitled  to  fees 
for  the  performance  of  an  act  which  is  unnecessary  or  un- 
authorized ;  ^  but  he  can  collect  his  fees  although  his  ser- 
vices prove  ineffective  if  the  fault  was  of  the  person  employ- 
ing him.  "2  A  notary  who  asks  or  receives  more  than  the 
statutory  fee  for  any  notarial  work  commits  extortion  and 
is  guilty  of  a  misdemeanor.^  If  a  notary,  besides  perform- 
ing some  notarial  act  for  a  client,  performs  some  unofficial 
services,  he  may,  of  course,  charge  for  the  same.* 

[a]  "Every  notary  public  is  entitled  to  demand  and  receive  the  fees 
herein  enumerated: — 

"1.  Protest  of  a  bill  of  exchange  or  promissory  note,  one  dollar, 

"2.  Attesting  any  instrument  of  writing,  with  or  without  seal,  fifty 
cents. 

"3.  Taking  acknowledgment,  two  persons,  with  seal,  fifty  cents. 

"4.  Taking  acknowledgment,  each  person  over  two,  twenty-five  cents. 

6  EUis   V.    Commercial   Bank,    7  ^ng.    Ency,    of   Law,   2d   ed.,   p. 

How.    (Miss.)    294,   40   Am.   Dec.  576. 

g3  2  See  note  1. 

^^  8  §  35,  note  [11. 

CLindenbergerv.Beall,6meat.  ^  39     Cyc.    Law    &    Proc,    p. 

(U.  S.)  104,  5  L.  ed.  216.  ,,,7.    ^^^^^^^  ^    ^^^^^^^^  'J^ 

1  Hughes  v.  McDill,  1  Tex.  eral,  30  Ky.  Law  Rep.  109,  97  S. 
App.  Civ.  Cas.,  §  1267;  21  Am.  &       W.  397. 


104  LAW  FOR  NOTARIES  PUBLIC. 

"5.  Certifying  affidavit,  with  or  without  seal,  fifty  cents. 

"6.  Registering  protest  of  bill  of  exchange  or  promissory  note,  for  non- 
acceptance  or  nonpayment,  fifty  cents. 

"7.  Being  present  at  demand,  tender  or  deposit,  and  noting  the  same, 
besides  mileage  at  the  rate  of  ten  cents  per  mile,  fifty  cents. 

"8.  Noting  a  bill  of  exchange  or  promissory  note,  for  nonacceptance 
or  nonpayment,  fifty  cents. 

"9.  For  copying  any  instrument  or  record,  besides  certificate  and 
seal,  per  folio,  fifteen  cents. 

"10.  Each  oath  or  affirmation  without  seal,  twenty-five  cents. 

"11.  For  any  instrument  of  writing,  or  depositions  or  affidavits  writ- 
ten, exclusive  of  the  certificate  thereto,  drawn  by  a  notary  public,  for 
each  hundred  words, [b]  twenty-five  cents":  Laws  1890,  p.  475,  §  8;  1 
H.  C,  §  336;  Laws  1893,  p.  421,  §  1;  Laws  1903,  p.  290,  §  1;  Laws 
1907,  p.  94,  §  Ij  Bal.  Code,  §  252;  2  Eem.  &  Bal.  Code,  §  8302. 

[b]  "The  term  'folio,'  when  used,  as  a  measure  for  computing  fees 
or  compensation,  shall  be  construed  to  mean  one  hundred  words,  count- 
ing every  two  figures  necessarily  used  as  a  word.  Any  portion  of  a 
folio,  when  in  the  whole  draft  or  paper  there  should  not  be  a  com- 
plete folio,  and  when  there  shall  be  an  excess  over  the- last  folio  ex- 
ceeding a  quarter,  it  shall  be  computed  as  a  folio.  The  filing  of  a 
paper  shall  be  construed  to  include  the  certificate  of  the  same":  Laws 
1869,  p.  373,  §  5;  Code  1881,  §  2093;  1  H.  C,  §  3022;  Bal.  Code,  §  1612; 
Rem.  &  Bal.  Code,  §  500. 

§  40.  Removal. — A  notary  public  is  appointed  by  the 
governor  for  four  years,  but  may  be  removed  by  him  at  any 
time  during  the  four  years  if  the  governor  decides  that  he 
should  not  be  allowed  by  reason  of  misconduct,  malfeasance 
or  incompetency  to  enjoy  the  privileges  of  the  said  office,  [a] 
[b]    [c]    [d]    [e] 

[a]  "Removal  from  Office. — All  officers  not  liable  to  impeachment 
shall  be  subject  to  removal  for  misconduct  or  malfeasance  in  office,  in 
such  manner  as  may  be  provided  by  law":  Wash.  Const.,  art.  5,  §  3. 

[b]  "The  governor  of  the  state  of  Washington  is  hereby  authorized 
and  empowered  to  remove  from  office  all  state  officers  appointed  by 
him  not  liable  to  impeachment  for  incompetency,  misconduct  or  mal- 
feasance in  office":  Laws  1893,  p.  247,  §  1;  Bal.  Code,  §  107;  2  Eem. 
&  Bal.  Code,  §  8994. 

[c]  "Whenever  the  governor  is  satisfied  that  any  officer  not  liable 
to  impeachment  has  been  guilty  of  misconduct,  or  malfeasance  in 
office,  or  is  incompetent,  he  shall  file  with  the  secretary  of  state  a 
statement  showing  his  reasons  with  his  order  of  removal,  and  the  sec- 


NOTARY   PUBLIC:   DISQUALIFICATIONS:  DUTIES,  ETC.        105 

rctary  of  state  ;hall  forthwith  send  a  certified  copy  of  such  order  of 
removal  and  statement  of  causes  by  registered  mail  to  the  last  known 
postofB.ce  address  of  the  ofl&cer  removed":  Laws  1893,  p.  284,  §  2;  Bal. 
Code,  §  108;  2  Rem.  &  Bal.  Code,  §  8995. 

[d]  "The  omission  to  specify  or  affirm  in  this  act  any  ground  of 
forfeiture  of  a  public  of&ce  or  other  trust  or  special  authority  con- 
ferred by  law,  or  any  power  conferred  by  law  to  impeach,  remove, 
depose  or  suspend  any  public  officer  or  other  person  holding  any  trust, 
appointment  or  other  special  authority  conferred  by  law,  shall  not 
affect  such  forfeiture  or  power,  or  any  proceeding  authorized  by  law 
to  carry  into  effect  such  impeachment,  removal,  deposition  or  suspen- 
sion": Laws  1909,  p.  901,  8  45;  2  Bern.  &  Bal.  Code,  §  2297. 

[e]  It  would  seem  that  by  the  constitutional  provision,  article  5,  section 
3,  sections  8994  and  8995  of  2  Remington  and  Ballinger's  Code,  State  v, 
Burke,  8  Wash.  412,  36  Pac.  281,  and  State  ex  rel.  Hewlett  v.  Cheatham, 
19  Wash.  330,  53  Pac.  349,  there  is  no  question  but  that  the  governor 
may  at  any  time  remove  a  notary  public  for  misconduct  or  malfeas- 
ance in  office,  and  also  that  the  notary  removed  would  have  no  right 
te  have  a  hearing  although  his  office  is  for  a  fixed  period. 

§  41.  Delegation  of  Authority. — A  notary's  clerk  has  no 
right,  in  the  absence  of  the  notary,  to  take  oaths,  affidavits  or 
aelcnowledgments  and  to  attach  the  notary's  seal  thereto. 
He  would  thereby  be  laying  himself  open  to  a  criminal 
prosecution,  as  would  the  notary  himself,  if  he  knew  and 
countenanced  such  acts.^  The  question  of  how  far  a  notary's 
clerk's  acts  are  acceptable  as  the  acts  of  the  notary  him- 
self has  never  been  taken  to  any  final  court  of  judicature  in 
this  country,  except  in  the  case  of  bills  and  notes.^  In  all 
these  cases,  with  the  exception  of  states  which  have  a  stat- 
ute or  which  allow  it  by  usage,  it  has  been  held  that  a  pre- 
sentment either  for  acceptance  or  payment  by  a  notary's 
clerk  is  insufficient.  A  notary's  privileges  and  rights  are 
personal.^ 

1  §  35,  notes  [e],  [f].  on  Bills,   13th  Am.   ed.,  p.    517; 

2  21  Am.  &  Eng.  Ency.  of  Ocean  Nat.  Bank  v.  Williams, 
Law,  2d  ed.,  p.  577,  note  3.  102  Mass.  141;  3  Kent's  Com.,  p. 

8  Sacrider     v.    Brown,    3     Mc-  94;   Gawtry  v.  Doane,  51   N.  Y. 

Lean  (U.  S.),  481,  Eed.  Cas.  No.  84. 

12,205;  Cribbs  v.  Adams,  13  Gray  "The    duty   of     the    notary   in 

(Mass.),   597;    Commercial    Bank  making  the   demand   for   aceept- 

V.  Varnum,  49  N.  Y.  269;  Chitty  ance  or  payment  is  personal,  and 


106  LAW  FOR  NOTARIES  PUBLIC. 

§  42.  Notaries  De  Facto:  Definition. — ^Lord  Ellenbor- 
ough,  many  years  ago  in  England,  defined  an  officer  de  facto 
to  be  "one  who  has  the  reputation  of  being  the  officer  he 
assumes  to  be,  and  yet  is  not  a  good  officer  in  point  of  law." 
Some  examples  of  notaries  de  facto  would  be  the  following : 
A  present  notary  in  Washington,  assuming  the  law  under 
which  he  was  appointed  to  be  unconstitutional;  a  notary 
beginning  to  officiate,  although  his  term  has  not  begun; 
a  notary  holding  over  after  the  expiration  of  his  term ;  a 
person  appointed  a  notary  who  is  in  fact  an  alien;  a  person 
appointed  in  this  state  who  has  not  filed  a  bond  to  fulfill  the 
requirements  of  the  statute.  If  a  person  who  has  no  reason 
whatever  to  think  he  is  a  notary  should  begin  to  act  as  a 
notary  he  would  not  be  a  notary  de  facto;  he  would  be  an 
intruder  or  usurper.  If  a  person  has  reason  to  think  that 
he  has  been  appointed  a  notary,  and  then  performs  notarial 
acts,  he  would  be  a  notary  de  facto,  although  by  reason  of 
some  defect  in  his  appointment  or  otherwise  he  is  not  a 
legally  appointed  notary.^  A  single  act,  however,  will  not 
constitute  a  person  a  de  facto  notary  ;2  he  must  exercise 
the  rights  of  a  notary  for  some  period  of  time.* 

§  43.  Notaries  De  Facto:  Are  Their  Acts  Valid?— The 
validity  of  the  acts  of  notaries  de  facto  is  often  of  great 
importance.  The  rule  seems  to  be  that  as  to  the  public 
and  third  persons  his  acts  are  valid  and  cannot  be  collat- 
erally attacked.'*  This  rule  was  laid  down  in  Washington 
when  yet  a  territory.  In  Bullene  v.  Garrison,  decided  in 
July,   1878,   1  Wash.   Ter.   589,  Mr.  Justice    Greene   said: 

cannot  be  performed  by  his  clerk  2  Biencourt  v.  Parker,  27  Tex. 

or    a    third    person,    and    his    no-  558;    Gary  v.   State,   76  Ala.    78; 

tarial   certificate  must  show  it":  8  Am.  &  Eng.  Ency.  of  Law,  2d 

3  Kent's  Com.,  p.  94.  ed.,  p.  784. 

1  29     Cyc.     Law    &     Proc,    p.  3  Hughes   v.   Long,    119   N.    C. 

1075;     Hamilton     v.    Pitcher,    53  52,  25  S.  E.  743,  notes  1  and  2. 
Mo.  334;  Smith  v.  Meador,  74  Ga.  4  Gary    v.    State,    76    Ala.    78; 

416,  58  Am.  Eep.  438;  Bernier  r.  Wilson  v.  Kimmel,  109  Mo.  260, 

Becker,  37   Ohio  St.   72;   Hughes  19  S.  W.  24;  Davidson  v.  State, 

V.  Long,  119  N.  C.  52,  25  S.  E.  135  Ind.  254,  34  N.  E.  972. 
743. 


NOTARY   PUBLIC:   DISQUALIFICATIONS:    DUTIES,   ETC.         107 

** Plaintiff  in  error  contends  that  Maynard's  deed  to  Gar- 
rison and  Moxlie  was  not  duly  acknowledged.  It  purports 
to  have  been  acknowledged  before  one  Plunmier,  as  notary 
public.  The  evidence  shows  that  Plummer  was  exercising 
the  functions  of  a  notary,  and  publicly  assuming  to  be  such. 
His  oath  of  office,  official  bond  and  notarial  seal  were  all  on 
file  in  the  executive  office  of  the  territory.  He  was  at  least 
an  officer  de  facto,  and  his  right  to  the  office  could  not  be 
tried  in  this  suit." 

§  44.  Notaries  Ex  Officio. — In  addition  to  notaries  public 
many  other  officials  may  by  virtue  of  their  office  administer 
oaths  and  take  affidavits,  acknowledgments  and  depositions.^ 
Among  those  who  can  exercise  all  of  these  rights  are  judges 
of  the  supreme  and  superior  courts,  and,  within  their  own 
jurisdictions,  all  other  judicial  officers.  Commissioners  of 
deeds  and  city  clerks  of  the  third  class  may  take  affidavits. 
The  clerks  of  the  supreme  and  superior  courts,  and  their 
deputies,  court  commissioners,  county  auditors  and  their 
deputies,  and  commissioners  of  deeds  may  take  acknowl- 
edgments. A  long  list  of  officials  are  given  the  power  to 
administer  oaths  in  certain  cases.  Depositions  may  be  taken 
by  supreme  and  superior  court  judges,  by  all  other  judicial 
officers,  by  the  clerks  of  the  supreme  and  superior  courts, 
by  mayors,  by  city  clerks,  by  court  commissioners.  But 
these  powers  do  not  constitute  these  various  officials  notaries 
public.  Their  powers  are  delegated  to  them  by  statute,  and 
they  have  no  right  to  overstep  those  enumerated  and  at- 
tempt to  perform  other  acts  which  a  notary  may  do  by  virtue 
of  his  office.^ 

1  "The    constitution    of    Texas  29    Cyc.   Law   &  Proc,  p.    1073, 

has   recognized   domestic   justices  note  38. 

of  the  peace  as  notaries  ex  offi-  2  Some    of   the    references   are 

cio,  but  it  is  said  that  such  jus-  the  following:  Eem.  &  Bal.  Code, 

tices  are  not  recognized  as  nota-  §§  85,  59,  60,  1233,  1239,  7696^^, 

ries      by      foreign      governments:  1962,  1264,  77,  8305,  3926. 
Gilleland  v.  Drake,  36  Tex.  676": 


lOa  LAW  FOE  NOTARIES  PUBLIC. 


CHAPTER  VL 

OATHS. 

§  45,  History. 

§  46.  Definitions:  Oath. 

§  47.  :  Affirmation. 

§  48.  Administration:  What  Constitutes. 

§  49.  :  Who  may  Take  Oath. 

§  50.  :  Who  may  Administer:  Ministerial  Act. 

§  51.  Form. 

§  52.  Evidence  of  Administration, 

§  53.  False  Oaths:  Punishment  for. 

§  45.  History. — The  taking  of  an  oath,  or  swearing,  is 
a  very  old  practice.  It  has  been  the  custom  of  all  civilized 
nations  to  have  persons  go  through  some  form  of  pledge  or 
avowal  to  God  in  order  to  insure  truthfulness.^  Oaths  are 
a  part  of  Christianity  no  more  than  of  any  other  religion; 
nor  are  they  a  custom  of  courts  alone.^  According  to  "Best 
on  Evidence"  they  were  used  before  societies  were  formed 
or  cities  built!^  We  know  that  a  Jew  is  sworn  on  the  Pen- 
tateuch, or  Old  Testament,  with  his  head  covered;*  a  Mo- 
hammedan, on  the  Koran;''  a  Gentoo,  by  touching  with  his 
hand  the  foot  of  a  Brahmin  or  priest  of  his  religion ;  a  Brah- 
min, by  touching  the  hand  of  another  such  priest;^  a  China- 
man, by  breaking  a  china  saucer;'^  or  by  blowing  out  a 
candle.® 

1  21     Am.     &     Eng.    Ency.    of  6  Omychund  v.  Barker,  1  Atk. 
Law,  2d  ed.,  p.  744;  Omychund  v.  45,  26  Eng.  Reprint,  15. 
Barker,  1  Atk.  45,   26  Eng.  Re-  7  Regina       v.     Entrehman,     1 
print,     15;     Perry    v.     Common-  Cromp,  &  M,  248,   25  Alb.  L.  J. 
wealth,   3   Gratt.    (Va.)    632.  301;    State   v.    Chyo    Chiagk,    92 

2  See  note  1;  Clinton  v.  State,  Mo.  395,  4  S.  W,  704. 

33  Ohio  St.  27;  Best  on  Evidence,  8  Bouv.   Law.    Diet.     (Rawle's 

Chamberlayne's   ed.,   §   56.  Rev.),  tit.  "Oath";   State  v.  Gin 

3  See  note  2.  Pong,  16  Wash,  428,  47  Pac.  961 
*  Strange,  821,  1113;  Newman  (February,  1897). 

V.  Newman,  7  N.  J.  Eq.  26;  Ses-  One    of    the    first,    if    not    the 

senwein  v.  Palmer,  3  Quebec  Pr.  first,   oaths  we   have   any   record 

110.  of    is    found    in     the    fourteenth 

5  Rex   V.  Morgan,  Leach  0.  C.  chapter  of  the  book  of  Genesis, 

64.  the  time  of  which  is  supposed  to 


OATHS.  109 

While  oaths  are  of  very  ancient  origin,  aflfirmations  are 
modern,  created  by  statute  law.®  They  were  first  intro- 
duced to  satisfy  certain  religious  sects  whose  members  be- 
lieved that  the  Biblical  admonition  "Swear  not  at  all" 
meant  just  what  it  said.  Prominent  among  these  were  the 
Quakers,  Moravians  and  Separatists.^"  The  granting  of  the 
right  to  those  who  had  religious  scruples  was  soon  followed 
by  a  granting  of  the  same  privilege  to  those  who  have  con- 
scientious scruples.^^  And  now  by  statute  in  nearly  all  of 
the  states  a  person  may  affirm  instead  of  taking  an  oath. 
In  "Washington  this  right  is  protected'  by  article  1,  section 
6,  of  the  constitution,  [a]  and  also  by  the  Laws  of  1869.  [b] 
The  constitution  also  sets  forth  in  article  1,  section  11,  that 
no  person  shall  be  incompetent  as  a  witness  in  consequence 
of  his  opinion  on  matters  of  religion,  nor  be  questioned  in 
any  court  of  justice  touching  his  religious  belief  to  affect 
the  weight  of  his  testimony,  [c] 

[a]  "Oaths — Mode  of  Administering. — The  mode  of  administering 
an  oath  or  affirmation  shall  be  such  as  may  be  most  consistent  with 
and  binding  upon  the  conscience  of  the  person  to  whom  such  oath  or 
affirmation  may  be  administered" :  Wash.  Const.,  art.  1,  §  6. 

be  1913  years  before  the  coming  doubtless,    the    eternity   and   im- 

of  Christ.     We  find    there  these  mortality     of     their     gods.     The 

words:   "And  Abram  said  to  the  Persians  swore  by  the  sun,  which 

King  of  Sodom,  I   have   lift  up  was  regarded  as  their  chief  deity 

mine    hand    unto    the    Lord,    the  — the    author    of   light    and    life 

most  high  God,  the  possessor  of  and    all   blessings.     The     ancient 

heaven    and    earth,  that    I    will  Scythians  swore  by  the  air,  the 

not  take  anything  that  is  thine,  sustainer    and    promoter    of   life. 

lest   thou    shouldest    say,   I   have  ....  In    an    early    and    solemn 

made  Abram  rich."  form   of   adjuration,    the    Eoman 

A   writer  in   a   recent   number  juror  took  a  pebble  in  his  right 

of    "The    Docket,"    a    law   maga-  hand   and   threw  it   away,   using 

zine,  in  an  article  on  "The  Oath,"  these     words:    'If     knowingly    I 

says:     "Almost     universally    the  speak  falsely,  may  Diospiter  cast 

ancients  swore  by   their   deities,  me   away,   as   I   cast    this   stone 

or    some    object    that    they    wor-  away.' " 

shiped,  or  which  represented  the  9  21     Am.    &     Eng.     Ency.    of 

object  of  worship.     Thus,  we  find  Law,  2d  ed.,  p.  744. 

the  ancient  Indians  swearing  by  lo  See  note  9. 

a  stream  flowing  from  a  fountain  H  See  note  9. 
of  unfailing  water,  representing, 


110  LAW  FOR  NOTARIES  PUBLIC. 

[b]  "Any  person  who  has  conscientious  scruples  against  taking  an 
oath  may  make  his  solemn  affirmation,  by  assenting,  when  addressed, 
in  the  following  manner:  'You  do  solemnly  affirm  that,'  etc.,  as  in 
section  1265":  Laws  1869,  p.  379,  §  5;  2  H.  C,  §  1697;  Bal.  Code, 
§  6058;  1  Eem.  &  Bal.  Code,  §  1268. 

[c]  "Art.  1,  sec.  11 No  religious  qualification  shall  be  re- 
quired for  any  public  office  or  employment,  nor  shall  any  person  be 
incompetent  as  a  witness  or  juror,  in  consequence  of  his  opinion  on 
matters  of  religion,  nor  be  questioned  in  any  court  of  justice  touch- 
ing his  religious  belief  to  affect  the  weight  of  his  testimony":  Amend- 
ment 4  to  the  constitution  of  the  state  of  Washington,  approved  No- 
vember, 1904. 

§  46.  Definitions:  Oath. — An  oath  is  an  outward  pledge 
given  by  the  person  taking  it  that  his  attestation  or  promise 
is  made  under  an  immediate  sense  of  his  responsibility  to 
God.^  Another  definition  is:  An  oath  is  a  solemn  invoca- 
tion of  the  vengeance  of  the  Deity  upon  the  witness  if  he 
do  not  declare  the  whole  truth,  so  far  as  he  knows  it.^  In 
its  broadest  sense,  the  term  is  used  to  include  all  forms  of 
attestation  by  which  a  party  signifies  that  he  is  bound  in 
conscience  to  perform  the  act  faithfully  and  truly .^  The 
essential  requisite  of  an  oath  at  common  law  is  belief  by  the 
witness  or  afiiant  in  the  existence  of  a  God,  who  will  punish 
him  if  he  swears  falsely,  and  an  appeal  to  such  God  as  the 
rewarder  of  truth  and  the  avenger  of  falsehood.^  In  the 
state  of  "Washington  the  oath  is  as  follows:  "You  do  sol- 
emnly swear  that  the  evidence  you  shall  give  in  the  issue 
(or  matter)  now  pending  between  John  Doe  and  Richard 

1  Tyler  on   Oaths,   15.  being,  cannot  affect  the  question, 

2  1  Starkie  on  Evidence,  22.  as  the   sum   of   the   matter   is   a 

3  Bouv.  Law  Diet.  (Rawle's  belief  that  God  is  the  avenger 
Rev.),  tit.   "Oath."  of    falsehood The    admin- 

4  29  Cye.  Law  &  Proc,  p.  istration  of  an  oath  supposes 
1298:  "In  Blocker  v..  Burness,  2  that  a  moral  and  religious  ac- 
Ala.  354,  it  is  held  that  the  sane-  countability  is  felt  to  a  Supreme 
tion  of  an  oath  is  a  belief  that  Being,  and  this  is  the  sanction 
the  Supreme  Being  will  punish  which  the  law  requires  upon  the 
falsehood;  and  whether  that  pun-  conscience  of  a  person,  before  it 
ighment  is  administered  by  re-  admits  him  to  testify:  Wakefield 
morse  of  conscience,  or  in  any  v.  Ross,  5  Mason,  16,  28  Fed. 
other  mode   in  this  world,   or  is  Cas.  No.   17,050." 

reserved  for  the  future  state  of 


OATHS.  Ill 

Roe  shall  be  the  truth,  the  whole  truth  and  nothing  but  the 
truth,  so  help  you  God."  The  oath  a  notary  would  usually 
administer  is  as  follows:  "You  do  solemnly  swear  you  will 
true  answers  make  to  such  questions  as  you  may  be  asked, 
and  that  the  said  answers  shall  be  the  truth,  the  whole  truth, 
and  nothing  but  the  truth,  so  help  you  God. "[a]  If  the 
person  to  be  sworn  is  not  a  Christian,  and  the  notary  thinks 
a  peculiar  mode  of  swearing  would  be  more  solemn  and 
obligatory,  that  mode  may  be  adopted  in  his  taking  the  oath, 
[b]  [c]  The  words  "oath,"  "affirmation,"  and  "swear" 
all  mean  the  same  thing  in  the  eyes  of  the  law.[d] 

[a]  "An  oath  may  be  administered  as  follows:  The  person  who 
swears  holds  up  his  hand,  while  the  person  administering  the  oath 
thus  addresses  him:   'You  do  solemnly  swear  that  the  evidence  you 

shall  give  in  the  issue  (or  matter)  now  pending  between and 

shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth, 

so  help  you  God.'  If  the  oath  be  administered  to  any  other  than  a 
witness  giving  testimony,  the  form  may  be  changed  to:  'You  do  sol- 
emnly swear  you  will  true  answers  make  to  such  questions  as  you 
may  be  asked,'  etc.":  Laws  1869,  p.  378,  §  2;  2  H.  C,  §  1694;  Bal. 
Code,  §  6055;  1  Kem.  &  Bal.  Code,  §  1265. 

[b]  "Whenever  the  court  or  officer  before  which  a  person  is  offered 
as  a  witness  is  satisfied  that  he  has  a  peculiar  mode  of  swearing  con- 
nected with  or  in  addition  to  the  usual  form  of  administration,  which, 
in  witness'  opinion,  is  more  solemn  or  obligatory,  the  court  or  officer 
may,  in  its  discretion,  adopt  that  mode":  Laws  1869,  p.  379,  §  3;  2  H. 
C,  §  1695;  Bal.  Code,  §  6056;  1  Eem.  &  Bal.  Code,  §  1266. 

[c]  "When  a  person  is  sworn  who  believes  in  any  other  than  the 
Christian  religion,  he  may  be  sworn  according  to  the  (peculiar)  cere- 
monies of  his  religion,  if  there  be  any  such":  Laws  1869,  p.  379,  §  4; 
2  H.  C,  §  1696;  Bal.  Code,  §  6057;  1  Rem.  &  Bal.  Code,  §  1267. 

[d]  "The  term  'oath'  shall  include  an  affirmation  and  every  other 
mode  authorized  by  law  of  attesting  the  truth  of  that  which  is  stated. 
A  person  who  shall  state  any  matter  under  oath  shall  be  deemed  to 
'swear'  thereto":  Laws  1909,  p.  920,  §  102;  1  Eem.  &  Bal.  Code,  §  2354. 

§  47.  Definitions:  Affirmation. — An  affirmation  has  been 
defined  as  a  solemn  declaration  made  under  penalties  of 
perjury  by  persons  who  conscientiously  decline  taking  an 
oath,  which  declaration  is  in  law  equivalent  to  an  oath.  If 
a  person  has  conscientious  scruples  against  taking  an  oath. 


112  LAW  FOR  NOTARIES  PUBLIC. 

the  notary  should  have  him  give  his  assent  to  the  follow- 
ing: "You  do  solemnly  affirm  that  the  evidence  you  shall 
give  in  the  issue  (or  matter)  now  pending  between  John 
Doe  and  Richard  Roe  shall  be  the  truth,  the  whole  truth, 
and  nothing  but  the  truth,  so  help  you  God."  Or  in  some 
eases  the  form  would  be:  "You  do  solemnly  affirm  that  you 
will  true  answers  make  to  such  questions  as  you  may  be 
asked,  and  that  said  answers  shall  be  the  truth,  the  whole 
truth,  and  nothing  but  the  truth,  so  help  you  God."  [a]  [b] 

[a]  See  §  46,  notes  [a]  and  [d]. 

[b]  "Whenever  an  oath  is  required,  an  affirmation  as  required  in 
the  last  section  is  to  be  deemed  equivalent  thereto,  and  a  false  affirma- 
tion is  to  be  deemed  perjury  equally  with  a  false  oath":  Laws  1869, 
p.  379,  §  6;  2  H.  C,  §  1698j  Bal.  Code,  §  605O;  1  Rem.  &  Bal.  Code, 
§  1269. 

§  48.  Administration:  What  Constitutes. — The  adminis- 
tration of  an  oath  must  necessarily  vary  with  the  person 
taking  the  oath,  for  it  is  to  be  administered  in  the  way  which 
most  affects  his  conscience.^  If  he  is  a  Christian,  a  usual 
form  would  be  for  him  to  stand  with  his  head  uncovered, 
with  his  right  hand  raised  and  giving  attention  to  the  words 
spoken  by  the  notary.  When  the  notary  finishes  repeating  the 
oath  he  should  say:  "I  do,"  or  some  other  words  of  like  mean- 
ing, showing  that  he  gives  assent  to  the  promise  or  attestation. 
If  the  person  to  be  sworn  believes  in  a  religion  other  than  the 
Christian,  religion  he  should  be  sworn  according  to  the  peculiar 
ceremonies  of  his  religion,  if  there  are  any  such  ceremonies.^ 
After  a  person  not  a  Christian  is  sworn  according  to  his 
religion  it  would  be  perfectly  allowable  to  swear  him  ac- 
cording to  the  statute.  In  State  v.  Gin  Pong,  16  Wash.  428, 
47  Pac.  961  (February,    1897),   Mr.   Justice   Dunbar   says: 

1  Gill    V.     Caldwell,     1     Breese      Ency.  of  Law,  2d  ed.,  p.  750;  29 


(111.),  53;  Commonwealth  v.  Buz 
zell,  16  Pick.  (Mass.)  163;  New 
man  v.  Newman,  7  N.  J.  Eq.  26 
State  V.  Chyo  Chiagk,  92  Mo 
395,  4  S.  W.  704;  The  Bark  Mer 
rimac,  1  Ben.  (U.  S.)  490,  Fed 
Gas.  No.  9,474;  21  Am.  &  Eng. 


Cyc.  Law  &  Proc,  p.  1303;  Bouv. 
Law  Diet.  (Rawle's  Eev.),  tit. 
"Oath." 

2  Omychund  v.  Barker,  1  Atk. 
21,  26  Eng.  Reprint,  15;  Newman 
V.  Newman,  7  N.  J.  Eq.  26. 


OATHS.  113 

*'0n  the  second  proposition,  it  seems  that  the  oath  which 
was  administered  to  the  witnesses,  who  were  Chinese,  was 
administered  according  to  the  custom  and  religion  of  their 
country,  viz.,  each  witness  blew  out  a  candle,  and  his  oath 
was  that  if  he  did  not  tell  the  truth  he  would  be  snuffed 
out  as  was  the  candle.  But  after  this  eastern  form  of  oath 
was  administered,  the  court  also  administered  the  form  of 
oath  prescribed  by  our  statute,  and  the  appellant  insists 
that  the  taking  of  this  second  oath  in  some  way  weakened 
the  influence  of  the  other  oath  in  the  minds  of  the  witnesses. 
We  think  this  contention  scarcely  merits  a  discussion."* 

§  49.  Administration:  Who  may  Take  Oath. — All  per- 
sons who  have  sufficient  intelligence  to  understand  the 
nature  of  an  oath,  and  who  believe  in  the  existence  of  a 
Supreme  Being  whose  attributes  impose  upon  their  con- 
sciences a  sense  of  responsibility  for  falsehood  and  a  moral 
obligation  to  speak  the  truth  when  deposing  under  the  sanc- 
tion of  an  oath,  are  competent  to  take  an  oath.^  For  ex- 
ample, a  child  may  be  sworn  if,  after  an  examination  by 
the  notary,  he  decides  that  the  child  understands  the  nature 
of  an  oath. [a]  [b]  The  notary  should  learn  this  fact  by 
talking  with  the  child  and  questioning  it  as  to  what  telling 
the  truth  means  and  as  to  what  will  happen  if  he  does  not 
tell  the  truth,2  In  this  state  if  the  child  is  under  ten  years 
of  age  the  notary  should  examine  him  especially  along  the 
lines  of  his  capability  of  receiving  true  impressions  from 
things  which  have  taken  place  around  him  and  also  of  his 
ability  to  tell  about  these  impressions  truthfully,  [b]     Intel- 

3  Bow  V.  People,  160  111.  438,  oath,   under   a  statute   requiring 

43    N.    E.    593.     In     Sullivan     v.  the    mode    most    binding    on    the 

Flatonia  First  Nat.  Bank,  37  Tex.  conscience  of  the  individual,  and 

Civ.   App.   228,   83   S.   W.  421,  it  another  providing  that  affidavits 

was  held  that  the  administration,  "may    be    made    before"    certain 

of    an    oath    over    the    telephone  officers. 

was  not  good,  although  the  offi-  i  21     Am.     &     Eng.    Ency.    of 

cer    purporting   to    administer    it  Law,  2d  ed.,  p.  747. 

knew  and  recognized  the  voice  of  2  16     Am.    &     Eng.    Ency.    of 

the  person  purporting  to  take  the  Law,  2d  ed.,  p.  267. 
8 


114  LAW  FOR  NOTARIES  PUBLIC. 

ligence  and  not  age  seems  to  be  the  proper  test.^  Before 
putting  the  child  under  oath  the  notary  should  decide 
whether  it  has  suflBeient  mental  capacity  and  a  proper  sense 
of  moral  obligation.^  [c] 

A  deaf  and  dumb  person  who  understands  the  nature  and 
sanctity  of  an  oath  is  competent  to  be  sworn,  if  any  person 
can  be  found  who  can  communicate  to  him,  by  signs,  the 
questions  asked,  and  interpret  his  ansAvers  to  the  notary ;  or 
if  he  can  write  and  read  writing,  and  thus  receive  questions 
and  give  answers.^  Neither  a  drunken  person  nor  a  person 
of  unsound  mind  can  be  sworn,  [b]  Should  the  person  to 
be  sworn  be  unable  to  understand  the  English  language  the 
oath  may  be  administered  through  the  medium  of  an  inter- 
preter. 

[a]  "Every  person  of  sound  mind  and  suitable  age  and  discretion, 
except  as  hereinafter  provided,  may  be  a  witness  in  any  action  or  pro- 
ceeding": Laws  1854,  p.  186,  §  289;  Code  1881,  §  388;  2  H,  C,  §  1645; 
Bal.  Code,  §  5990;  1  Eem.  &  Bal.  Code,  §  1210. 

[b]  "The  following  persons  shall  not  be  competent  to  testify: — 
1.  Those  who  are  of  unsound  mind,  or  intoxicated  at  the  time  of  their 

8  Note  2,  p.  268;  State  v.  Jack-  lieved   in    God,    and    thought   it 

Bon,    9     Or.    457;     Washburn     v.  wrong  to  tell  lies,  was  held  to  be 

People,  10  Mich.  372;   People  v.  competent. 

Bernal,  10  Cal.  66.  In  Minton  v.  State,  99  Ga.  254, 

4  16     Am.    &     Eng.    Ency.    of  25  S.  E.  626,  a  child  of  eight,  who 

Law,  2d  ed.,  p.  270;  Anonymous,  stated  that  he  did  not  know  what 

3   N.  J.  L.  487;   Davis  v.   State,  an    oath    was,    but    also    said    he 

31  Neb.  247,  47  N.  W.  854.     The  knew  what  it  was  "to  go  up  in 

following    examples    were    taken*  the    courthouse    and    swear    you 

from    16   Am.    &    Eng.    Ency.    of  have  to  tell  the  truth,"  that  the 

Law,  2d  ed.,  p.  269:  law  would  punish  him  if  he.  told 

In  Missouri  etc.  E.  Co.  v.  John-  a  story,  and  that  he  was  bound 

son  (Tex.  Civ.  App.  1896),  37  S.  to    tell    the    truth    when     sworn, 

W.  771,  a  child  of  ten,  who  stated  was  held  to  be  competent, 

that  it  was  wrong  to  tell  a  story.  In    Parker    v.    State,    33    Tex. 

and  that  if  he  did  the  old  bug-  Cr.   Ill,  21  S.  W.  604,  25  S.  W. 

german  would  get  him  and  burn  967,  a  boy  of  twelve,  who  stated 

him,  was   held  to  be   competent.  that  "it  was  wrong  to  tell  a  lie," 

In    State   v.   Scanlan,   58    Mo.  and    that    if    he    told    a    lie    he 

204,  a  child  of  nine,  who  stated  would  be  punished,  was  held  com- 

that  she  was  the  daughter  of  the  petent. 

defendant,   that    she    knew    her  8  8  Am.  &  Eng.  Ency.  of  Law, 

prayers,   could    read    some,   be-  2d  ed.,  p.  844. 


OATHS.  115 

production  for  examination;  and  2.  Cliildren  under  ten  years  of  age 
who  appear  incapable  of  receiving  just  impressions  of  the  facts  re- 
specting which  they  are  examined,  or  of  relating  them  truly":  Laws 
1873,  p.  106,  §  384;  Code  1881,  §  391;  2  H.  C,  §  1648;  Bal.  Code, 
§  5993;  1  Rem.  &  Bal.  Code,  §  1213. 

[c]  In  State  v.  Bailey,  31  Wash.  89,  71  Pac.  715  (February,  1903), 
Mr.  Justice  Hadley,  in  commenting  on  the  testimony  of  a  child  of 
twelve  years,  said:  "The  capacity  of  a  witness  of  tender  years  is  a 
question  for  the  discretion  of  the  trial  judge,  and  will  not  be  disturbed 
except  in  cases  of  manifest  abuse  of  discretion." 

§  50.  Administration:  Who  may  Administer:  Ministerial 
Act. — ^As  this  book  was  written  for  notaries,  it  is  sufficient 
to  state  that  a  notary  public  has  the  power  to  administer 
oaths,  [a]  [b]  The  administration  of  an  oath  being  purely 
ministerial,  the  fact  that  the  notary  administering  it  is  in- 
terested in  the  proceeding  in  which  it  is  to  be  used  does  not 
disqualify  him;  but  a  notary  cannot  administer  an  oath  to 
himself.^  The  question  of  interest  is  discussed  under  the 
head  "Nature  of  the  Office:  Judicial  or  Ministerial."^  A 
notary  of  Washington  may  administer  an  oath  anywhere  in 
the  state. [c]  'And  an  attorney  at  law  who  is  a  notary  may 
administer  an  oath  to  his  client,  [a] 

[a]  "Every  duly  qualified  notary  public  is  authorized  in  any  county 
in  this  state, — .  ...  3.  To  take  depositions  and  affidavits,  and  admin- 
ister all  oaths  required  by  law  to  be  administered;  and  every  attorney 
at  law  who  is  a  notary  public  may  administer  any  oath  to  his  client, 
and  no  pleading  or  affidavit  shall,  on  that  account,  be  held  by  any 
court  to  be  improperly  verified":  Laws  1890,  p.  474,  §  4;  1  H.  C,  §  332; 
Bal.  Code,  §  248;  2  Rem.  &  Bal.  Code,  §  8298. 

[b]  "Every  court,  judge,  clerk  of  a  court,  justice  of  the  peace,  or 
notary  public  is  authorized  to  take  testimony  in  any  action,  suit,  or 
proceeding,  and  such  other  persons  in  particular  cases  as  authorized 
by  law.  Every  such  court  or  officer  is  authorized  to  administer  oaths 
and  affirmations  generally,  and  every  such  other  persons  in  such  par- 
ticular case  as  authorized":  Laws  1869,  p.  378,  §  1;  2  H.  C,  §  1693; 
Bal.  Code,  §  6094;  1  Rem.  &  Bal.  Code,  §  1264. 

[c]  "Every  notary  public  shall  be  appointed  for  the  state  ....": 
Laws  18dO,  p.  473,  §  2;  1  H.  C,  §  330;  Bal.  Code,  §  246;  2  Rem.  &  Bal. 
Code,  §  8296. 

1  In  re  South  Beaver  Tp.  Eoad,       such  a  statement  if  it  were  not 
8    Kulp     (Pa.),    75.     One    would       for  this  case, 
think    it     unnecessary    to     make  2  §  12. 


116  LAW  FOR  NOTARIES  PUBLIC. 

§  51.  Form. — As  stated  before,  the  form  of  the  oath  must 
necessarily  vary  with  the  person  taking  it,  as  it  must  be  in 
that  form  which  will  be  most  binding  on  the  conscience  of 
the  affiant.  If  the  person  is  a  Christian,  one  of  the  follow- 
ing forms  should  be  used : 

FORM  VII. 

"You  do  solemnly  swear  (or  affirm)  that  the  evidence 
you  shall  give  in  the  issue  (or  matter)  now  pending  between 
John  Doe  and  Richard  Roe  shall  be  the  truth,  the  whole 
truth,  and  nothing  but  the  truth,  so  help  you  God."  [a]  [b] 
[c]  [d] 

FORM  VIII. 

"You  do  solemnly  swear  (or  affirm)  that  you  will  true 
answers  make  to  such  questions  as  you  may  be  asked,  and 
that  the  said  answers  shall  be  the  truth,  the  whole  truth, 
and  nothing  but  the  truth,  so  help  you  God." 

FORM  IX. 

"You  do  solemnly  swear  (or  affirm)  that  tjie  contents  of 
this  affidavit  are  known  to  you  and  that  the  said  facts  are 
the  truth  to  the  best  of  your  knowledge  and  belief,  so  help 
you  God." 

If  the  person  objects,  by  reason  of  conscientious  scruples, 
to  "swearing,"  the  word  "affirm"  can  be  used  instead  of 
"swear."  It  would  seem,  however,  that  he  must  have  ex- 
pressed some  conscientious  scruples  before  the  notary  would 
be  justified  in  changing  the  words.  It  has  been  held  by  a 
number  of  states  that  where  a  statute  lays  down  a  particular 
form  of  oath  or  affirmation,  that  form  must  be  followed.^ 
But  the  fact  that  an  oath  was  taken  in  an  irregular  manner 
would  not  prevent  a  prosecution  for  perjury,  [e]  If  the 
person  to  be  sworn  is  not  a  Christian,  that  form  should  be 
used  which  would  be  the  most  binding  on  his  conscience ;  [f  ] 
[g]  [h]  it  may  be  breaking  a  saucer,  blowing  out  a  candle, 
burning  joss  sticks,  or  kissing  the  foot  of  a  priest.^ 

1  29    Cyc.  Law  &  Proc.    1304;  2  29     Cyc.     Law    &    Proc,    p. 

Perry  v.  Thompson,  16  N.  J.  L.      1303. 
72;   Shattuck  v.  Bascom,  1C5  N. 
Y.  39,  12  N.  E.  283. 


OATHS.  117 

[a]  "An  oath  may  be  administered  as  follows:  The  person  who 
swears  holds  up  his  hand,  while  the  person  administering  the  oath 
thus   addresses   him:    'You    do    solemnly    swear    that    the    evidence   you 

shall  give  in  the  issue  (or  matter)  now  pending  between and 

shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth, 

£0  help  you  God.'  If  the  oath  be  administered  to  any  other  than  a 
witness  giving  testimony,  the  form  may  be  changed  to:  'You  do  sol- 
emnly swear  you  will  true  answers  make  to  such  questions  as  you 
may  be  asked,'  etc.":  Laws  1869,  p.  378,  §  2;  2  H.  C,  §  1694;  Eal.  Code, 
§  6055;  1  Eem.  &  Bal.  Code,  §  1265. 

[b]  "Any  person  who  has  conscientious  scruples  against  taking  an 
oath  may  make  his  solemn  aflS.rmation,  by  assenting,  when  addressed, 
in  the  following  manner:  'You  do  solemnly  affirm  that,'  etc.,  as  in  sec- 
tion 1265":  Laws  1869,  p.  379,  §  5;  2  H.  C,  §  1697;  Bal.  Code,  §  6058; 
1  Eem.  &  Bal.  Code,  §  1268. 

[c]  "Whenever  an  oath  is  required,  an  affirmation  as  required  in  the 
last  section  is  to  be  deemed  equivalent  thereto,  and  a  false  affirmation 
is  to  be  deemed  perjury  equally  with  a  false  oath":  Laws  1869,  p.  379, 
§  6;  2  H.  C,  §  1698;  Bal.  Code,  §  6059;  1  Eem.  &  Bal.  Code,  §  1269. 

[d]  "The  term  'oath'  shall  include  an  affirmation  and  every  other 
mode  authorized  by  law  of  attesting  the  truth  of  that  which  is  stated. 
A  person  who  shall  state  any  matter  under  oath  shall  be  deemed  to 
'swear'  thereto":  Laws  1909,  p.  920,  §  102;  1  Eem.  &  Bal.  Code,  §  2354. 

[e]  "It  shall  be  no  defense  to  a  prosecution  for  perjury  that  an  oath 
was  administered  or  taken  in  an  irregular  manner  ....":  Laws  1909, 
p.  921,  §  103;  1  Eem.  &  Bal.  Code,  §  2355. 

[f]  "Oaths — Mode  of  Administering. — The  mode  of  administering 
an  oath  or  affirmation  shall  be  such  as  may  be  most  consistent  with 
and  binding  upon  the  conscience  of  the  person  to  whom  such  oath  or 
affirmation  may  be  administered":  Wash.  Const.,  art.  1,  §  6. 

[g]  "When  a  person  is  sworn  who  believes  in  any  other  than  the 
Christian  religion,  he  may  be  sworn  according  to  the  (peculiar)  cere- 
monies of  his  religion,  if  there  be  any  such":  Laws  1809,  p.  379,  §4; 
a  H.  C,  §  1696;  Bal.  Code,  §  6057;  1  Eem.  &  Bal.  Code,  §  12G7. 

[h]  "Whenever  the  court  or  officer  before  which  a  person  is  offered 
as  a  witness  is  satisfied  that  he  has  a  peculiar  mode  of  swearing 
connected  with  or  in  addition  to  the  usual  form  of  administration, 
which,  in  witness'  opinion,  is  more  solemn  or  obligatory,  the  court  or 
officer  may,  in  its  discretion,  adopt  that  mode":  Laws  1869,  p.  379, 
§  3;  2  H.  C,  §  1695;  Bal.  Code,  §  6056;  1  Eem.  &  Bal.  Code,  §  12«6. 

§  52.  Evidence  of  Administration. — ^When  a  notary  cer- 
tifies that  a  certain  person  has  sworn  before  him  it  is  not 


118  LAW  FOB  NOTxN.rJES  PUBLIC. 

necessary  for  him  to  add  in  what  manner  the  oath  was  ad- 
ministered. It  will  be  presumed  that  he  administered  it  in 
the  legal  way.  If  the  person  '  *  affirms ' '  instead  of  '  *  swears, ' ' 
it  will  not  be  necessary  to  add  anything  to  the  words  that 
he  affirms;  that  is,  no  words  in  explanation  of  the  fact  why 
he  affirmed.  Nor,  if  the  oath  is  administered  in  some  pecu- 
liar manner,  will  it  be  necessary  to  set  forth  that  fact  and 
explain  why  that  form  was  used.  The  law  will  presume, 
if  nothing  is  said  by  way  of  explanation,  that  the  ceremony 
most  binding  on  the  conscience  of  the  affiant  was  adminis- 
tered.^ After  reciting  the  fact  that  it  was  ''sworn  to"  and, 
if  signed,  "subscribed,"  the  notary  should  add  his  name 
and  date  and  also  his  official  title  and  seal.  These  addi- 
tions do  not  affect  in  any  way  the  oath  taken,  but  are  useful 
in  the  matter  of  evidence.^  The  following  is  a  form  used 
very  often: 

FORM  X. 

WILLIAM  STILES.     [Seal] 

Sworn  to  and  subscribed  before  me  this  20th  day  of  Sep- 
tember, 1910,  at  Seattle,  Washington. 

[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington,  Residing 
at  Seattle. 

If  the  oath  is  to  be  used  in  any  of  the  courts  of  Wash- 
ington, it  is  not  necessary  for  the  notary  to  append  an  im- 
pression of  his  seal,  but  in  all  other  cases  when  the  notary 
signs  an  instrument  as  notary  he  must,  in  addition  to  his 
name  and  the  words  "Notary  Public"  add  his  place  of  resi- 

1  21     Am.    &     Eng.     Ency.    of  which   recites   the  fact   that   the 

Law,  2d  ed.,  p.  753;  29  Cyc.  Law  complainant  made  solemn  affirm- 

&  Proc,  p.   1305;   Colvin  v.  Peo-  ation  to  the  complaint  is  conclu- 

ple,    166   111.    82,   46    N.    E.    737;  sive,  not  only  that  the  complain- 

Cross    V.    Barnett,    61    Wis.    650,  ant  was  "conscientiously  scrupu- 

21  N.  W.  832;  State  v.  Freeman,  lous  of  taking  an  oath,"  but  that 

59  Vt.  661,  10  Atl.  752.  he      formally      "affirmed      under 

In  State  v.  Welch,  79  Me.  99,  pains  and  penalties  of  perjury," 

8  Atl.  348,  it  held  that  the  cer-  as  required  by  statute. 
tificate    of     the     magistrate    to  2  21     Am.    &     Eng,    En^y.     of 

whom     a     complaint     is     made,  Law,  2d  ed.,  p.  754. 


OATHS.  119 

dence  and  attach  his  official  seal.'    This  will  be  considered 
more  fully  under  "Affidavits."* 

§  53.  False  Oaths:  Punishmfent  for. — Any  person  taking 
a  false  oath  is  liable  to  be  prosecuted  for  perjury.  What 
constitutes  perjury  in  the  first  degree  and  what  constitutes 
perjury  in  the  second  degree  are  set  forth  in  the  following 
statutes,  together  with  the  punishments  for  the  same : 

"Every  person  who,  in  any  action,  proceeding,  hearing, 
inquiry  or  investigation,  in  which  an  oath  may  lawfully  be 
administered,  shall  swear  that  he  will  testify,  declare,  de- 
pose or  certify  truly,  or  that  any  testimony,  declaration, 
deposition,  certificate,  affidavit  or  other  writing  by  him  sub- 
scribed is  true,  and  who  in  such  action,  proceeding,  hearing, 
inquiry  or  investigation  shall  state  or  subscribe  as  true  any 
material  matter  which  he  knows  to  be  false,  shall  be  guilty 
of  perjury  in  the  first  degree  and  shall  be  punished  by  im- 
prisonment in  the  state  penitentiary  for  not  more  than  fifteen 
years":  Laws  1909,  p.  920,  §  99;  1  Rem.  &  Bal.  Code,  §  2351. 

"It  shall  be  no  defense  to  a  prosecution  for  perjury  in 
the  first  degree  that  the  defendant  did  not  know  the  mate- 
riality of  his  false  statement  or  that  it  did  not  in  fact  affect 
the  proceeding  in  or  for  which  it  was  made.  It  shall  be 
sufficient  that  it  was  ma'terial  and  might  have  affected  such 
proceeding":  Laws  1909,  p.  920,  §  100;  2  Rem.  &  Bal.  Code, 
§  2352. 

"Every  person  who,  whether  orally  or  in  writing,  and 
whether  as  a  volunteer  or  in  a  proceeding  or  investigation 
authorized  by  law  shall  knowingly  swear  falsely  concerning 
any  matter  whatsoever,  shall  be  guilty  of  perjury  in  the 
second  degree  and  shall  be  punished  by  imprisonment  in  the 
state  penitentiary  for  not  more  than  five  years  or  by  im- 
prisonment in  the  county  jail  for  not  more  than  one  year": 
Laws  1909,  p.  920,  §  101 ;  1  Rem.  &  Bal.  Code,  §  2353. 

"It  shall  be  no  defense  to  a  prosecution  for  perjury  that 
an  oath  was  administered  or  taken  in  an  irregular  manner 

3  Laws  1890,  p.  474,  §  5;  1  H.  Brown,  1  Wash.  470,  25  Pac.  914. 
C,  §  333 ;  BaL  Code,  §  249;  2  Eem.  4  §  66. 

&  Bal.   Code,    §    8299;    Gates   v. 


120  LAW   FOR  NOTARIES  PUBLIC. 

or  that  the  defendant  was  not  competent  to  give  the  testi- 
mony, deposition,  certificate  or  affidavit  of  which  falsehood 
is  alleged.  It  shall  be  sufficient  that  he  actually  gave  such 
testimony  or  made  such  deposition,  certificate  or  affidavit": 
Laws  1909,  p.  921,  §  103 ;  1  Rem.  &  Bal.  Code,  §  2355. 

"Every  unqualified  statement  of  that  which  one  does  not 
knov/  to  be  true  is  equivalent  to  a  statement  of  that  which 
he  knows  to  be  false":  Laws  1909,  p.  921,  §  105;  1  Rem.  & 
Bal.  Code,  §  2357. 

"Every  person  who,  upon  any  trial,  hearing,  inquiry,  in- 
vestigation or  other  proceeding  authorized  by  law,  shall  offer 
or  procure  to  be  offered  in  evidence,  as  genuine,  any  book, 
paper,  document,  record  or  other  instrument  in  writing, 
knowing  the  same  to  have  been  forged  or  fraudulently  al- 
tered, shall  be  punished  by  imprisonment  in  the  state  peni- 
tentiary for  not  more  than  ten  years":  Laws  1909,  p.  921, 
§  106;  1  Rem.  &  Bal.  Code,  §  2358. 

"Whenever  it  shall  appear  probable  to  a  judge,  justice 
of  the  peace,  magistrate,  or  other  officer  lawfully  authorized 
to  conduct  any  hearing,  proceeding  or  investigation,  that  a 
person  who  has  testified  before  him  has  committed  perjury 
in  any  testimony  so  given,  or  offered  any  false  evidence,  he 
may,  by  order  or  process  for  that  purpose,  immediately  com- 
mit such  person  to  jail  or  take  a  recognizance  for  his  appear- 
ance to  answer  such  charge.  In  such  case  he  may  detain 
any  book,  paper,  document,  record  or  other  instrument  pro- 
duced before  him  or  direct  it  to  be  delivered  to  the  prose- 
cuting attorney":  Laws  1909,  p.  921,  §107;  1  Rem.  &  Bal. 
Code,  §  2359.1 

1  It   is    questioned   whether   the  a  notary  the  power  to  commit  a 

framera  of  the  Criminal   Code  of  person  to  jail  if  he  thinks  that  per- 

1909   had   notaries   in   mind   when  son  has  committed  perjury  before 

they  wrote  section  107:  1  Kern.  &  his  as   an   "officer"?     If    so,  how 

Bal.  Code,  §2359.    Question:  Has  would  he  proceed f 


APFroAVITS. 


121 


CHAPTER  Vn. 

AFFUDAVITS. 

§  54.  Definitions. 

§  55.  Who  may  Make. 

§  56.  The  Oath. 

§  57.  Notary  may  Take. 

§  58.  Parts  of  an  Affidavit. 

§  59.  :  The  Title. 

§  60.  :  The  Venue. 

§  61.  :  Date. 

§  62.  :  Body. 

§  63.  :  Signature. 

§  64.  :  Signature:  Names. 

§  65. :   Jurat:    Forms. 

§  66.  :  Jurat:  Necessity  of:   Place:  Oath: 

ture:  Seal. 

§  67.  Affidavits:  Criminal  Law. 

§  68.  Affidavits:  Forms:  Interpreter's  Oath. 


§  54.  Definition. — An  affidavit  is  a  voluntary  ex  parte 
statement,  formally  reduced  to  writing,  and  sworn  to  or 
affirmed  before  some  officer  authorized  by  law  to  take  it.^ 
First,  it  must  be  voluntary.  If  it  were  not  voluntary  it 
might  come  under  the  head  of  depositions  when  the  witness 
is  compelled  to  attend  and  testify ;  but  the  word  ' '  affidavit ' ' 
always  carries  with  it  the  idea  that  it  is  voluntarily  sworn 
to.2  Secondly,  it  must  be  "ex  parte."  If  it  were  not  ex 
parte  it  would  clearly  be  a  deposition,  for  that  marks  the 


"Before  Me":   Signa- 


1  1  Ency.  of  PI.  &  Pr.,  p.  309. 
See  §  56,  note  [a]. 

2  Bacon  v.  Magee,  7  Cow.  (N. 
Y.)  515;  Stimpson  v.  Brooks,  3 
Blatchf.  (U.  S.)  456,  Fed.  Cas. 
No.  13,454;  1  Ency.  of  PI.  &  Pr., 
p.  309.  "The  law  presumes  that 
the  performance  of  every  act  re- 
quired by  it  is  voluntary,  and 
no  affidavit  is  valid  unless  ob- 
tained by  legal  means  and  for  a 
legal  purpose":  Dudley  v.  Mc- 
Cord,    65   Iowa,    671,   22     N.   W. 


920.  An  affidavit  is  also  volun- 
tary in  the  sense  of  not  being 
made  under  cross-examination: 
Robb  V.  McDonald,  29  Iowa,  330, 
4  Am.  Eep.  211;  3  Black.  Com. 
304;  Gill  v.  Ward,  23  Ark.  16; 
Shelton  v.  Berry,  19  Tex.  155,  70 
Am.  Dec.  326;  Gresley  Eq.  Ev., 
413;  Cox  V.  Stern,  170  111.  442,  62 
Am.  St.  Eep.  385,  48  N.  E.  906; 
State  V.  Headrick,  149  Mo.  396, 
51  S.  W.  99. 


122 


LAW  FOR  NOTARIES  PUBLIC. 


difference  between  affidavits  and  depositions.^  Thirdly,  it 
must  be  reduced  to  writing.  The  law  knows  no  such  thing 
as  an  unwritten  affidavit.^  Fourthly,  the  written  statement 
must  be  sworn  to  or  affirmed.  The  true  test  of  the  suffi- 
ciency of  a  paper  as  an  affidavit  is  the  possibility  of  assign- 
ing perjury  on  it  if  it  is  false."  Fifthly,  it  must  be  sworn 
to  or  affirmed  before  some  officer  authorized  by  law  to  take 
it.  Under  the  Washington  statute  a  notary  is  clearly  such 
an  officer,  [a]  although  he  would  not  have  such  power  at 
common  law.* 

[a]  See  §  50,  note  [a]. 


§  55.  Who  may  Make. — ^From  the  point  of  view  of  the 
notary  there  are  only  two  questions  to  be  determined  in 
deciding  whether  a  person  can  make  an  affidavit.  The  first 
is  the  question  as  to  the  ability  of  the  affiant  to  take  an 
oath.  That  question  has  been  considered  under  the  title 
"Oaths"  on  page  113.     Secondly,  the  affidavit  must  be  made 


3  Ex  parte  means  "on  the  part 
of  one  party."  It  seems  that 
the  difference  between  a  deposi- 
tion and  an  affidavit  is  that  the 
former  is  made  after  notice  and 
the  latter  without  notice:  Aichi- 
son  V.  Bartholow,  4  Kan.  124; 
State  V.  Henning,  3  S.  D.  492, 
54  N.  W.  536;  Stimpson  v. 
Brooks,  3  Blatchf.  (U.  S.)  456, 
Fed.  Cas.  No.  13,454;  1  Am.  & 
Eng.  Ency.  of  Law,  2d  ed.,  p. 
909;  Gresley  Eq.  Ev.,  413;  Woods 
V.  State,  134  Ind.  42,  33  N.  E. 
901;  Bishop  v.  McQuerry,  13 
Bush  (Ky.),  418;  1  Ency.  of  PI. 
&  Pr.,  pp.  309,  310. 

4  Affidavits  must  always  be  in 
writing:  Windley  v.  Bradway,  77 
N.  C  333;  Hawkins  v.  Gibson,  1 
Leigh  (Va.),  480;  Shelton  v. 
Berry,  19  Tex.  154,  70  Am.  Dec. 
326;  Harris  v.  Lester,  80  111.  307; 
State   V.   Sullivan,  39   S.  C.  400, 


17  S.  E.  865;  1  Ency.  of  PI.  & 
Pr.,  p.  310.  The  word  "affida- 
vit," ex  vi  termini,  means  an  oath 
reduced  to  writing:  Grove  v. 
Campbell,  9  Yerg.  (Tenn.)  10; 
Watt  v.  Carnes,  4  Heisk.  (Tenn.) 
534. 

B  1  Ency.  of  PI.  &  Pr.,  p.  310; 
Hyde  v.  Adams,  80  Ala.  Ill; 
Gaddis  v.  Durashy,  13  N.  J.  L. 
324;  Neal  v.  Gordon,  60  Ga,  112; 
Harris  v.  Heberton,  5  How. 
(Miss.)  575;  Mairet  v.  Marriner, 
34  Wis.  582;  Miller  v.  Munson, 
34  Wis.  579,  17  Am.  Eep.  461. 

6  Keefer  v.  Mason,  36  111.  406 
State  V.  Green,  15  N.  J.  L.  88 
Brooks   V.   Snead,   50   Miss.   418 
Watt  V.  Carnes,  4  Heisk.  (Tenn.) 
534;      Metcalf      v.     Prescott,     10 
Mont.  293,  25  Pac.  1037;  Garrard 
V.    Hitsman,    16     N.    J.    L.    124; 
Hays  V.  Loomis,  84  111.  18. 


AFFIDAVITS.  123 

by  a  person  having  knowledge  of  the  facts.*  As  to  when 
an  affidavit  must  be  made  by  certain  parties,  their  agents, 
or  attorneys  to  make  them  admissible  in  court  the  statutes 
must  be  referred  to.  To  the  notary  the  important  questions 
are.  Can  A  take  an  oath?  Does  he  know  the  facts?  and 
not,  Will  the  court  accept  an  affidavit  made  by  A?  But  it 
may  be  noted  here  that  where  a  statute  prescribes  a  certain 
person  to  make  an  affidavit,  no  one  else  can  make  it.^ 

In  many  cases  an  agent  or  attorney  who  knows  the  facts 
may  make  an  affidavit  for  the  party  when,  on  account  of 
some  good  reason,  such  as  sickness  or  absence  from  the  juris- 
diction, the  party  himself  cannot  make  it.  In  such  cases 
the  agency  should  be  shown  in  some  way,  and  also  the  rea- 
son why  the  principal  did  not  make  the  affidavit  should  be 
set  forth  .^ 

The  courts  have  held  that  a  partnership  cannot  make  an 
affidavit  in  the  firm  name,  though  an  affidavit  signed  **A 
and  B,  by  B,"  has  been  held  good  as  an  affidavit  of  the 
agent.*  Likewise  an  affidavit  beginning  "I,  A'B,  state, 
etc.,"  and  signed  "A  B  &  Co.,"  was  held  sufficient.^  The 
proper  forms,  however,  would  be  as  follows : 

FORM  XI. 

"I,  A  B,  do  hereby  certify  that  I  am  the  senior  member 
of  the  firm  of  A  B  &  Co.,  the  plaintiff  in  the  above  action, 
that  .  .  .  ." 

FORM  XII. 

**I,  John  Doe,  do  hereby  certify  that  I  am  treasurer  for 
the  Hudson  Realty  Company,  that  I  had  full  charge  of  the 
purchasing  of  rights  of  way  for  the  Kittitas  Railroad  Com- 

1  Cheek    v.    James,     2     Heisk.  s  2  CytJ.  Law  &  Proc,  p.  5;  1 
(Tenn.)  170;  Eausch  v.  Moore,  48  Ency.  of  PI.  &  Pr.,  p.  327. 
Iowa,  611,  30  Am.  Rep.  412:  Will  .  . ^                        tx            „-     „ 
V.   Lytle    Creek    Water    Co.,    100  /  ^ZT\^-    5°'°' J^    ^°- 
Cal.  344,   34  Pac.  830.  r^'^o.    1  ^Tll  ""'    ^''^'    '' 

2  In  r;  Heath,  40  Kan.  333,  19  ^^-  ''''  '  ^-  ^-  ^''■ 

Pac.  926;  Shattuck  v.  Myers,  13  '^  Fortenheim     ▼.     Claflin,     47 

iDcl.  46,  74  Am.  Dec.  236;  2  Cyc.      -^jk.  49,  14  S.  W.  462. 
Law  &  Proc,  p.  5. 


124  LAW  FOR  NOTARIES  PUBLIC. 

pany  and  know  personally  all  the  facts  in  the  matter  con- 
cerning which  the  above-entitled  suit  is  brought." 

In  the  case  of  a  private  corporation,  an  agent  or  officer 
duly  authorized  by  the  statutes  to  make  oaths  on  behalf  of 
the  corporation  may  make  all  affidavits.®  In  regard  to  a 
municipal  corporation  it  will  depend  on  the  statutes  and 
charters  as  to  who  can  make  affidavits.  In  some  a  council- 
man, in  others  the  mayor  or  city  attorney,  may  take  the  oath 
on  behalf  of  the  municipality."^ 

It  has  been  held  that  an  affidavit  made  by  a  party  as 
"guardian"  is  his  individual  affidavit.®  Several  persons 
may  swear  to  and  sign  the  same  statement  of  facts  in  a 
single  affidavit.® 

§  56.  The  Oath. — ^Before  an  affidavit  has  any  value  what- 
ever it  must  be  sworn  to  or  affirmed  by  the  affiant.^  Just 
what  forms  must  be  gone  through  with  for  the  notary  to 
certify  the  affidavit  has  been  considered  under  the  subject 
"Oaths,"  found  on  page  112.  It  may  be  added  here,  how- 
ever, that  in  swearing  an  affidavit,  a  solemn  or  corporal  oath 
has  been  held  not  essential.^  It  is  not  necessary  that  the 
affiant  "hold  up  his  hand  and  swear";  all  that  is  necessary 
is  that  both  affiant  and  notary  understand  that  an  oath  is 
taken.^  Circumstances  must  show  that  there  was  an  oath 
or  affirmation  made.'* [a] 

[a]  "It  does  not  appear  from  the  record  that  the  paper  was  in  fact 

sworn  to In  other  words,  the  paper  upon  its  face  does  not  show 

that  it  is  an  affidavit,  and  there  is  no  proof  in  the  record  to  supplement 
the  showing  upon  the  face  of  the  paper" :  Tacoma  Grocery  Co.  v, 
Draham,  8  Wash,  263,  40  Am.  St.  Eep.  907,  36  Pae.  31,  Hoyt,  J.  (Feb- 
ruary, 1894). 

e  St.  Louis  E.  E.  Co.  v.  Fowler,  351;  Cosner  v.  Smith,  36  W.  Va. 

113  Mo.  458,  20  S.  W.  1069.  788,  15  S.  E.  977;  Doty  v.  Boyd, 

T  Wheeling  v.  Black,  25  W.  Va.  46  S.  C.  39,  24  S.  E.  59. 

266;  Corpenny  v.  Sedalia,  57  Mo.  2  McCain    v.    Bonner,    122    Ga. 

88.  842,  51  S.  E.  36. 

8  Wade  V.  Eoberts,  53  Ga.  26.  3  2  Cyc.  Law  &  Proc,  p.   17; 

»  Taylor  v.  State,  48  Ala.  180.  Dunlap  v.   Clay,  65  Miss.  454,  4 

1  Cantwell     v.    State,    27    Ind.  South.  118. 

505;    Kehoe    v.  Eounds,  69    111.  *  1  Eney.  of  PI.  &  Pr.,  p.  324. 


AFFIDAVITS.  125 

§  57.  Notary  may  Take. — A  notary  public  may  take  affi- 
davits under  the  Laws  of  1890.  [a]  As  to  when  a  notary 
may  take  affidavits  to  be  used  in  the  courts  of  the  United 
States  or  otherwise  under  the  United  States  government,  see 
the  topic  "Federal  Statutes,"  on  page  69. 

[a]  "Every  duly  qualified  notary  public  is  authorized  in  any  county 
in  this  state, — 3.  To  take  depositions  and  affidavits,  and  administer 
all  oaths  required  by  law  to  be  administered;  and  every  attorney  at 
law  who  is  a  notary  public  may  administer  any  oath  to  his  client,  and 
no  pleading  or  affidavit  shall,  on  that  account,  be  held  by  any  court 
to  be  improperly  verified":  Laws  1890,  p.  474,  §  4;  1  H.  C,  §  332;  Bal. 
Code,  §  248;  2  Eem.  &  Bal.  Code,  §  8298. 

§  58.  Parts  of  an  Affidavit. — According  to  the  defini- 
tion,i  an  affidavit  is  a  statement  "formally"  reduced  to  writ- 
ing. From  the  cases  we  find  that  the  formal  parts  neces- 
sary to  an  affidavit  are:  the  title,  the  venue,  date,  signature, 
jurat  and  authentication.^  Besides  these  formal  parts  every 
affidavit  contains  a  "body,"  the  statements  made  by  the  affi- 
ant as  being  true  to  his  own  knowledge.  These  different 
parts  of  every  affidavit  will  now  be  considered  in  their  order. 

§  59.  Parts  of  an  Affidavit:  The  Title.— If  the  affidavit 
is  one  which  is  intended  for  use  in  some  trial  or  proceed- 
ing, the  title  of  the  case  should  precede  the  affidavit.^  This 
is  not  absolutely  demanded  if  the  identity  of  the  case  and 
the  affidavit  is  shown  in  the  body  of  the  affidavit  or  by  ref- 
erence to  other  papers  duly  entitled;  but  it  is  considered 
better  form  to  give  the  affidavit  a  title  of  its  own.  Care 
should  be  taken  to  make  the  title  an  exact  copy  of  the  title 
of  the  action,  as  otherwise  it  would  be  rejected  unless  the 

1  §  54.  which  they  are  made  or  intended 

2  1  Ency.  of  PI.  &  Pr.,  p.  311;  to  be  used":  By  Justice  Cole  in 
Beebe  v.  Morrell,  76  Mich.  114,  Vinson  v.  Norfolk  etc.  E.  Co.,  37 
15  Am.  St.  Eep.  288,  42  N.  W.  W.  Va.  598,  16  S.  E.  802;  2  Archb. 
1119;  2  Cyc.  Law  &  Proc,  p.  17.  Pr.  899;  3  Chit.  Pr.  538;  2  Burr. 

3  "The   general    rule    in   regard  Pr.  342;  Parks  v.  State,  110  Ga. 
to  the  entitling  of  affidavits  un-  '    760,    36    S.    E.    73;    Goldstein    v. 
doubtedly  is  that  they  should  be  Whelan,  62  Ped.  124. 
regularly  entitled  in  the  court  in 


126 


LAW  FOB  NOTAKIES  PUBLIC. 


mistake  could  be  overcome  by  references  in  the  body  of  the 
affidavit.^  Of  course,  if  a  suit  has  not  been  begun  the  afl&- 
davit  should  not  be  entitled.^    The  following  is  a  title : 

FORM  XIII. 

In  the  Superior  Court  of  the  State  of  Washington  in  and  for 
the  County  of  King. 

John  Doe,  "^ 


Plaintiff, 


vs. 
Richard  Roe, 


>■ 


Defendant. 


No. . 

Affidavit. 


If  there  are  several  parties  to  the  suit  it  will  generally  be 
sufficient  to  entitle  the  affidavit  as  follows:* 

FORM  XIV. 

In  the  Superior  Court  of  the  State  of  "Washington  in  and  for 
the  County  of  King. 

John  Doe  et  al.,  "^ 

Plaintiffs, 
vs. 
Richard  Roe  et  al., 

Defendants. 


> 


No.  . 

Affidavit. 


2  1  Ency.  of  PL  &  Pr.,  p.  311; 
Watt  V.  Bradley,  95  Cal.  415,  30 
Pac.  557;  Whipple  v.  Williams, 
1  Mich.  115;  Watson  v.  Eeissig, 
24  111.  281,  76  Am.  Dee.  746;  Hill 
V.  McBurney  Oil  Co.,  112  Ga. 
788,  38  S.  E.  42,  52  L.  E.  A.  398; 
Dunham  v.  Eappleyea,  16  N.  J. 
L.  75. 

An  affidavit  which  does  not 
show  that  it  was  taken  for  use 
in  a  certain  case,  either  in  the 
body  of  the  affidavit  or  by  a 
title,  should  not  be  considered:  " 
Johnson  v.  Tanner,  126  Ga.  718, 
66  8.  E.  80. 

8  West   V.   Woolfolk,    21    Fla. 


189;  Cheadle  v.  Eiddle,  6  Ark. 
480;  1  Ency.  of  PI.  &  Pr.,  p.  312; 
Ex  parte  La  Farge,  6  Cow.  (N. 
Y.)  61;  Haight  v.  Turner,  2 
Johns.  (N.  Y.)  371;  Stacy  v. 
Parnham,  2  How.  Pr.  (N.  Y.)  26; 
Hawkins  v.  State,  136  Ind.  630, 
36  N.  E.  419;  Kinney  v.  Heald,  17 
Ark.  397. 

4  Seymour  v,  Bailey,  66  111. 
288;  Maury  v.  Van  Arnum,  1  Hill 
(N.  Y.),  370;  White  v.  Hess,  8 
Paige  (N.  Y.),  544;  Hubby  v. 
Harris,  63  Tex.  456.  Contra, 
Arnold  v.  Nye,  11  Mich.  456;  2 
Cyc.  Law  &  Proc,  p.  21. 


AFFIDAVITS. 


127 


§  60.  Parts  of  an  Affidavit:  The  Venue.— The  venue  of 
an  affidavit  consists  of  those  words  which  show  where  the 
affidavit  was  taken.  The  following  is  a  venue,  and  should 
be  placed  directly  after  the  title: 

FORM  XV. 

State  of  "Washington, 
County  of  King, — ss.^ 

It  means  that  the  notary  was  in  King  county,  Washing- 
ton, when  he  administered  the  oath  of  the  affidavit.  In 
earlier  times  the  venue  was  considered  so  essential  that  with- 
out it  an  affidavit,  otherwise  in  good  form,  would  be  re- 


1  The  question  is  often  asked, 
What  do  the  two  letters  "ss" 
mean?  The  authorities  say  that 
"ss"  is  the  abbreviation  of  the 
Latin  word  "scilicet"  (for  scire 
licet — it  is  granted  to  know)  and 
means,  to  wit,  namely,  that  is  to 
say.  How  the  second  "s"  be- 
came attached  to  the  first  "a," 
which  is  undoubtedly  the  first 
letter  of  "scire,"  seems  to  be  a 
question.  One  writer  says  that 
in  old  manuscripts  and  books  the 
abbreviation  for  "et"  (like  the 
"et"  in  licet)  closely  resembled 
a  "z."  We  have  an  example  of 
that  in  "viz.,"  which  is  the  same 
as  "viet,"  which  is  the  abbrevia- 
tion for  "videlicet."  "Videlicet" 
now  means  the  same  as  "scilicet." 
How  the  "z"  evoluted  into  an 
"s"  we  do  not  know,  unless  the 
sounds  of  the  two  letters  being 
alike  had  something  to  do  with 
it:  An  Etymological  Dictionary 
of  the  English  Language  (2d 
ed.),  by  Skeat;  The  Americana, 
Tol.  1,  tit.  "Abbreviations";  Stan- 
ford Dictionary  of  Anglicized 
Words  and  Phrases;  Century 
Dictionary  and  Cyclopedia;  Mc- 
Cord  Mercantile  Co.  v.  Glenn,  6 


Utah,  139,  21  Pac.  500;  Cook  v. 
Staats,  18  Barb.  (N.  Y.)  407; 
Blair  v.  West  Point  Mfg.  Co.,  7 
Neb.  146;  Byrd  v.  Cochran,  39 
Neb.  109,  58  N.  W.  127;  Smith 
V.  Collier,  3  N.  Y.  St.  Rep.  172. 

The  venue  should  be  given. 
Facts  are  not  to  be  inferred  from 
affidavits  when  the  party  has  it 
in  his  power  to  state  them  posi- 
tively: Brooks  V.  Hunt,  3  Caines 
(N.  Y.),  128. 

The  word  "venue"  was  orig- 
inally spelled  "visne,"  which 
word  came  from  the  low  Latin 
word  "visnetum,"  meaning  neigh- 
borhood. In  early  days  the  jury 
was  always  chosen  from  among 
the  men  of  the  neighborhood  who 
knew  all  the  facts  of  the  case, 
just  the  opposite  from  our  pres- 
ent theory  of  choosing  a  jury. 
The  venue  showed  the  county  in 
which  the  facts  were  alleged  to 
have  occurred:  Bouv.  Law  Diet. 
(Eawle's  Rev.),  tit.  "Venue." 

"And  the  form  of  the  affidavit, 
which  was  settled  so  long  ago  as 
the  reign  of  King  Charles  the 
Second  (1649-1685),  has  been 
ever  most  religiously  adhered  to": 
Tidd's  Practice,  p.  *609. 


128 


LAW  FOB  NOTABLES  PUBLIC. 


jected;*  but  this  stringent  rule  has  been  changed.^  The 
purpose  of  the  venue  is  to  show  that  the  officer  who  admin- 
istered the  oath  acted  within  his  jurisdiction,  and  if  this 
can  be  shown  from  the  affidavit  without  a  venue  it  will  be 
accepted.*    But  it  is  always  good  practice  to  use  it. 

When  a  notary  of  Washington  takes  an  affidavit  in  a 
county  in  which  he  does  not  reside,  he  should  place  the 
venue  in  the  county  in  which  he  is  at  the  time  of  the  ad- 
ministration of  the  oath.  A  notary  of  Washington  may  ex- 
ercise his  power  in  any  county  in  the  state,  and  the  venue 
should  show  where  he  was  at  that  time.  As  to  how  a  notary 
should  sign  if  in  a  county  in  which  he  does  not  reside,  see 
the  section  on  "Authentication,"  page  136. 

When  an  affidavit  is  taken  before  a  notary  to  be  used  in 
the  United  States  courts  the  venue  should  be: 


2  Lane  v.  Morse,  6  How.  Pr. 
(N.  Y.  Sup.  Ct.)  394;  Blair  v. 
West  Pt.  Mfg.  Co.,  7  Neb.  146; 
Brooks  V.  Hunt,  3  Caines  (N.  Y.), 
128;  Cook  v.  Staats,  18  Barb.  (N. 
Y.)  407;  Smith  v.  Eichardson,  1 
Utah,  194;  Burns  v.  Doyle,  28 
Wis.  460;  Barhyat  v.  Alexander, 
59  Mo.  App.  188;  Thompson  v. 
Burhans,  61  N.  Y.  52. 

3  State  V.  Henning,  3  S.  D.  492, 
54  N.  W.  536;  Eex  v.  Emden,  9 
East,  437,  103  Eng.  Eeprint,  640; 
Barnard  v.  Darling,  1  Barb.  Ch. 
(N.  Y.)  219;  Stone  v.  William- 
son, 17  HI.  App.  175;  Eeavis  v. 
Cowell,  56  Cal.  588;  Bennett  v. 
Benson,  25  N.  J.  L.  166.  "But 
while  it  is  proper  and  usual  to 
prefix  a  venue  to  an  afSdavit,  and 
particularly  desirable  when  the 
officer  administering  the  oath  has 
jurisdiction   in   more     than     one 


county,  we  are  of  opinion  that 
the  absence  of  a  venue  is  not 
fatal  to  an  affidavit":  Young  v. 
Young,  18  Minn.  94. 

4  Snell  v.  Eekerson,  8  Iowa, 
284;  People  v.  Cady,  105  N.  Y. 
299,  11  N.  E.  810;  Stone  v.  Mil- 
ler, 60  Iowa,  243,  14  N.  W.  781; 
Cook  V.  Staats,  18  Barb.  (N.  Y.) 
407,  from  which  we  learn  that 
where  the  affidavit  shows  by  its 
venue  that  it  was  taken  in  one 
county,  while  it  is  signed  by  an 
officer  appointed  for  another 
county,  it  cannot  be  read.  Un- 
der that  law  a  notary  could  act 
only  within  the  county  for  which 
he  was  appointed;  Eahilly  v. 
Lane,  15  Minn.  447;  State  v. 
Central  Pac.  E.  Co.,  17  Nev.  259, 
30  Pac.  887;  Wood  v.  Blythe,  46 
Wis.  650,  1  N.  W.  341. 


AFFIDAVITS.  129 

FORM  XVX 

United  States  of  America, 
Western  District  of  "Washington, 
Northern  Division, — ss.^ 

§  61.  Parts  of  an  AflBdavit:  Date. — While  a  date  is  not 
an  essential  part  of  an  affidavit,  the  notary  should  see  that 
the  affidavit  is  dated.^  It  is  his  duty  to  see  that  the  affidavit 
is  in  good  form;  that  would  call  for  a  date. 

§  62.  Parts  of  an  Affidavit:  Body.— The  body  of  the  affi- 
davit consists  of  the  statements  to  which  the  affiant  desires 
to  make  oath.  The  following  are  forms  often  used  in  in- 
troducing the  body  of  the  affidavit: 

FORM  xvn. 

"Eichard  Eoe,  of  the  City  of  Seattle,  County  of  King  and  State  of 
Washington,  being  duly  sworn  on  his  oath,  deposes  and  says:  that  he 
is  the  defendant  in  the  above-entitled  action;  that  he  has  reason  to 
believe  and  does  believe  that  he  cannot  have  a  fair  and  impartial  trial 
before  the  justice  before  whom  this  action  is  brought,  etc." 

In  the  above  introduction  it  will  be  noticed  that  the  case 
is  not  set  out,  but  merely  referred  to ;  a  title  would  be  abso- 
lutely necessary. 

FORM  xvni. 

"Richard  Roe,  being  duly  sworn  on  his  oath,  deposes  and  says,  that 
he  is  a  resident  of  the  city  of  Seattle,  county  of  King  and  state  of 
Washington;  that  for  the  past  five  years  he  has  been  a  resident  of 
the  said  city,  county  and  state;  that  he  is  of  the  age  of  twenty-one 
years;  that  he  is  the  plaintiff  in  the  action  now  pending  in  the 
superior  court  of  King  county,  state  of  Washington,  in  which  John 
Stiles  is  the  defendant;  that  he  makes  this  aflB.davit  for  the  purpose 
of  procuring  a  writ  of  attachment  in  said  action  in  the  manner  pro- 
vided by  law,  etc." 

•    In  the  above  introduction  the  case  is  set  out  so  that  it 
would  fix  the  action  in  which  it  is  to  be  used  though  not 

6  Sterrick  v.  Pugsley,  1  Flipp.  1  Freas  v.  Jones,  15  N.  J.  L. 

(TJ.   S.)    350,   22    Fed.    Cas.   No.       20, 
13.379,   and  U.  S.  Rev.   Stats.,  9 
863,  Aug.  15,  1876,  c.  304. 
9 


130  LAW  FOR  NOTARIES  PUBLIC. 

headed  by  a  title  of  the  cause.     Another  introduction  of  the 
body  setting  forth  the  date  and  place  is  as  follows : 

FOEM  XIX. 
"Richard  Eoe  personally  appears  before  me,  John  Doe,  a  notary 
public,  in  and  for  the  state  of  Washington,  residing  at  Seattle,  and 
now  on  the  10th  day  of  December,  1910,  at  &  o'clock  A.  M.  in  my 
oflSce,  304  Central  Building,  in  the  said  city  of  Seattle,  county  of 
King  and  state  of  Washington,  being  first  duly  sworn  on  his  oath, 
doth  depose  and  say  that  he  is  a  resident  of  the  town  of  Bremerton, 
county  of  Kitsap  and  state  of  Washington;  that  .  .  .  ." 

The  body  of  the  affidavit  should  be  composed  of  clear  con- 
cise statements  of  those  facts  which  the  affiant  desires  to 
swear  to.  If  they  are  facts  within  the  "personal  knowl- 
edge" of  the  affiant,  they  should  be  thus  set  out  and  not  in 
the  form  "on  information  and  belief."  The  affidavit  should 
not  be  worded  so  that  it  might  be  construed  in  two  ways; 
the  language  should  be  so  clear  that  there  could  be  no  mis- 
take as  to  what  facts  the  affiant  means  to  take  an  oath  to. 

An  affidavit  should  state  facts  and  not  conclusions;  the 
court  draws  the  conclusions  from 'the  facts  set  before  it. 

In  writing  an  affidavit  care  should  be  taken  to  keep  it 
free  from  interlineations  and  erasures.  If  it  is  necessary  to 
erase  or  write  in  words,  the  notary  should  write  his  initials 
in  the  margin  opposite  the  change  to  show  that  the  change 
was  made  before  the  oath  was  taken.  Examples  of  such 
correction  are  made  on  pages  138,  139. 

When  the  affiant  is  a  foreigner  and  an  interpreter  is  used, 
such  fact  should  be  noted  and  also  that  the  interpreter  took 
an  oath  that  he  understands  both  languages  and  would  cor- 
rectly interpret  the  words  of  the  affiant.  It  makes  no  differ- 
ence in  what  language  the  affidavit  is,  provided  it  is  shown 
that  the  affiant  understood  the  oath  he  took. 

§  63.  Parts  of  an  Affidavit:  Signature.— The  affiant,  after 
having  read  over  the  contents  of  the  instrument,  or  after 
the  instrument  has  been  read  to  him,  should  sign  his  name 
directly  under  the  statement.^  If  he  is  unable  to  write  by 
reason  of  ignorance,  the  notary  should  write  his  name  thus : 

1  Hathaway  v.  Scott,  11  Paige  Pr.,  p.  315;  Norton  v.  Hauge,  47 
(N.  Y.),  173;   1  Ency.   of  PI.  &       Minn.  405,  50  N.  W.  368;  Alford 


AFFIDAVITS.  •  131 

FORM  XX. 
his 
.     JOHN    X    DOE. 
mark 

either  having  the  affiant  make  the  cross  in  the  center  or, 
at  least,  have  him  touch  the  pen  as  the  notary  makes  the 
cross.^ 

If  the  affiant  cannot  write  his  name  or  make  a  mark  by 
reason  of  disease  or  natural  infirmities  the  affidavit  will  be 
valid  v^ithout  it.'  In  such  a  case  the  notary  should  note 
the  fact  on  the  affidavit,  saying,  for  example : 

FORM  XXI. 
"Signature  was  not  made  because  affiant's  hands  are  so 
badly  burned  he  cannot  use  them." 

If  an  affidavit  is  not  signed  by  the  affiant,  but  it  clearly 
appears  by  whom  it  was  made  and  that  the  oath  was  prop- 
erly certified,  the  affidavit  will  be  held  valid  by  a  majority 
of  the  courts  unless  there  is  a  statute  or  a  rule  of  the  court 
requiring  a  signature.* 

An  agent  cannot  make  an  affidavit  in  his  principal's 
name;^  nor  can  a  partnership  make  an  affidavit.  If  an  affi- 
davit is  signed  with  a  partnership  name,  it  will  be  consid- 

V.  McCormac,  90  N.  C.  151;  Lynn  605;  Armstrong  v.  Austin,  45  S. 

V.  Morse,  76  Iowa,  665,  39  N.  W.  C.  69,  22  S.  E.  763,  29  L.  R.  A. 

a03;     Crenshaw     v.     Taylor,     70  772;  Bloomingdale  v.  Chittenden, 

Iowa,  386,  30  N.  W.  647;  Norman  75   Mich.   305,   42   N.   W,   836;    2 

V.  Horn,  36  Mo.  App.  419;  Har-  Am.  Dig.,  p.  27,  and  cases  cited 

gadine  v.  Van  Horn,  72  Mo.  370;  there. 

Noble  V.  United  States,  Dev.  Ct.  5  Coppock   v.    Smith,   54   Miss. 

of  CI.    83.  640.     In  Spencer  v.  Bell,  109  N. 

2  Perjury   is  assignable   where  C.  39,  13  S.  E.  704,  it  was  held 

a  mark  is  made:  United  States  v.  that   an   affidavit   signed   "J.   M. 

Mallard,  40  Fed.  151,  5  L.  E.  A.  S.,     per     D.    M.     S.,"    sufficiently 

816.  showed  that  it  was  made  for  the 

3  Soule  V.  Chase,  1  Eob.  (N.  Y.)  plaintiff,  although  it  should  have 

222.  been  signed  "D.  M.  S.,  agent  for 

4  Watts    V.  Womack,  44    Ala.  J.  M.  S." 


132  LAJV  FOB  NOTABIES  PUBLIC. 

ered  the  affidavit  of  the  one  who  signed  the  partnership 
name.'    The  affiant  should  sign  his  own  name. 

The  notary  should  be  very  careful  that  the  name  of  the 
affiant,  if  it  appears  in  the  body  of  the  affidavit,  be  in  the 
same  form  as  that  signed  at  the  end.'^  For  example,  if  the 
body  of  the  affidavit  refers  to  her  as  Jane  Doe,  the  affiant 
should  not  sign  Mrs.  John  Doe.  The  name  should  be  writ- 
ten in  the  body  of  the  affidavit  as  the  affiant  is  accustomed 
to  sign  her  name.  A  foreigner  should  sign  an  affidavit  writ- 
ten in  English  in  the  English  equivalent  of  his  name. 

§  64.  Parts  of  an  Affidavit:  Signature:  Names. — That 
naturally  brings  us  to  the  question  as  to  what  a  person's 
name  is  from  the  legal  point  of  view.  One  man  signs  John 
Henry  Johnson  Doe.  Is  that  his  name,  or  is  some  part  of  it 
sufficient?  Another  signs  Richard  H.  Roe.  Is  the  "H."  a 
part  of  his  name  f 

The  proper  and  approved  form  of  designating  persons  is 
to  set  out  the  full  Christian  name  and  surname,  thus: 

FORM  XXII. 

John  Doe.^ 

Initials  are  said  to  be  no  legal  part  of  a  name.^  Initials 
should  not  be  used  instead  of  full  Christian  names  in  legal 

«  Eandall  v.  Baker,  20  N.  H.  N".  J.  L,  69;  Slocum  v.  McBride, 

335.     In     Missouri     an     affidavit  17    Ohio,    607;     Gardner    v.    Mc- 

subscribed  with   a  firm  name   is  Clure,    6     Minn.    250;     Gunn     v. 

a   nullity:    Norman    v.    Horn,   36  Haworth,  159  Ind.  419,  64  N.  E. 

Mo.    App.     419;     Fortenheim    v.  911.     In     the     name    John    Doe, 

Claflin,  47  Ark.  49,  14  S.  W.  462.  "John"   is  the   Christian,   baptis- 

7  In  Ealey  v.   Warrenton,   120  mal    or   given   name,    and   "Doe" 

Ga.  365,  47  S.  E.  972,  it  was  held  is  the  surname,  family  name,  or 

that  the  signature  "M.  V.  Ealey"  patronymic. 

was  sufficient,  where  the  affidavit  2  Taylor  v.  State,  100  Ala.  68, 

began:    "Personally   comes    Mrs.  14  South.  875;  Monroe  Cattle  Co. 

Joseph    Ealey";     but    that    case  v.  Becker,  147  IT.  S.  57,  13  Sup. 

does  not  alter  the  fact  that  good  Ct.  Eep.  217,  37  L.  ed.  72;   Nor- 

practice    demands   the    names    to  ris  v.  Graves,  4  Strob.  L.  (S.  C.) 

be  the  same.  32;  Slinglufif  v.  Gainer,  49  W.  Va. 

1  United  States  v.  Upham,  43  9,  37  S.  E.  771;  14  Ency.  of  PL 

Fed.  68;  Elberson  r.  Eicharda,  42  &  Pr.,  p.  273;  Allen  v.  Taylor,  26 


AFFIDAVITS.  133 

papers.'    But  if  initials  are  used  the  law  demands  that  they 
be  correctly  given.* 

By  custom  a  woman  at  marriage  loses  her  own  surname 
and  acquires  that  of  her  husband.*  When  Jane  Doe  marries 
Richard  Roe,  her  name  becomes 

FORM  XXIII. 

Jane  Roe. 

The  law  knows  no  such  name  as  Mrs.  Roe.^  In  writing 
persons '  names  as  well  as  other  words  in  a  legal  document 
abbreviations  should  not  be  used.  For  example,  "Geo." 
should  not  be  written  for  "George,"  nor  "Bart."  for  "Bar- 
tholomew," nor  "Jos."  for  "Joseph."  "While  the  courts 
may  often  take  judicial  notice  of  the  abbreviation  as  stand- 
ing for  the  name  intended,  it  is  not  good  practice.'^  The 
general  rule  to  be  kept  in  mind  and  which  is  the  only  one  to 
be  followed  in  unusual  cases  is  that  a  name  is  the  designa- 
tion by  which  a  person  is  known  in  the  community  and  the 
requirement  in  full  is  certainty  of  identification.^    There- 

Vt.  601;  Doane  v.  Glenn,  1  Colo.  Bouv.  Law  Diet.  (Kawle's  Rev.), 

502;    State     v.    Martin,    10     Mo.  tit.  "Name";  1  Cyc.  PI.  &  Pr.,  p. 

391;    Beattie    v.    National   Bank,  46;    vol.   14,   p.   292;    21    Am.    & 

174  ni.  571,  66  Am.  St.  Eep.  318,  Eng.   Ency.    of   Law,    2d   ed.,   p. 

51  N.  E.  602.  312. 

3  Monroe  Cattle  Co.  v.  Becker,  «  Schmidt  v.  Thomas,  33  111. 
147  U.  S.  57,  13  Sup.  Ct.  Eep.  App.  109  y  State  v.  Eichards,  42 
217,  37  L.  ed.  72;  Norris  v.  N.  J.  L.  69;  State  v.  Gibbs,  44 
Graves,  4  Strob.  L.  (S.  C.)  32;  N.  J.  L.  169;  Gatty  v.  Field,  9 
14  Cyc.  PI.  &  Pr.,  p.  273.  Ad.  &  E.  431. 

4  The  courts  are  divided  as  to  7  i  Cyc.  PI.  &  Pr.,  p.  46;  21 
the  use  of  initials:  State  v.  Am.  &  Eng.  Ency.  of  Law,  2d 
Hughes,  1  Swan  (Tenn.),  261;  ed.,  p.  309;  Wilson  v.  Shannon, 
State  V.  Dudley,  7  Wis.  664;  King  6  Ark.  196;  Garrison  v.  People, 
V.  Clark,  7  Mo.  269;  Bowen  v.  21  III.  535;  2  Eoll.  Abr.  155; 
Mulford,  10  N.  J.  L.  230;  Claflin  Curtis  v.  Marrs,  29  111.  508.  It  may 
V.  Chicago,  178  111.  549,  53  N.  E.  be  added  here  that  the  best  practice 
33S.  demands  that  all  words  be  written 

5  Freeman  v.  Hawkins,  77  Tex.  out  in  full  and  not  abbreviated: 
498,  19  Am.  St.  Eep.  769,  14  S.  1  Cyc.  PI.  &  Pr.,  p.  42. 

W.    364;    Peterson    v.    Little,    74  8  Laflin  Powder  Co.  v.  Steytler, 

Iowa,  223,  37  N.  W.  169;  Ansley      146  Pa.   443,  23  Atl.  215,  14  L, 
V.  Green,  82  Ga.  181,  7  S.  E.  921;       B.  A.  690. 


134  LAW  FOR  NOTARIES  PUBLIC. 

fore,  if  there  are  now  persons  like  the  negro,  who,  during 
slavery,  often  had  but  one  name,  the  use  of  one  name  in  the 
instrument  would  be  sufl&cient.* 

§  65.  Parts  of  an  Afl&davit:  Jurat:  Forms. — The  jurat 
consists  of  the  statement  of  the  notary  properly  placed 
directly  after  the  signature  of  the  affiant  stating  that  the 
same  was  sworn  to  or  affirmed  before  him.^  The  following  is 
a  common  form  of  jurat  and  sufficient  in  all  cases  where  no 
special  form  is  prescribed  by  statute: 

FORM  XXIV. 

Subscribed  and  sworn  to  before  me  this  10th  day  of  De- 
cember, 1910. 

[Notary's  Seal]  JOHN  DOE, 

Notary   Public   of  the   State   of  Washington,   Residing   at 
Seattle. 

A  more  complete  form  and  one  that  will  often  be  of  value 
by  reason  of  statutes  in  some  states  ^  is  the  following,  which 
might  be  said  to  be  a  full  jurat: 

FORM  XXV. 

Subscribed  and  sworn  to  before  me  this  10th  day  of  Decem- 
ber, 1910,  at  Seattle,  King  County,  Washington,  by  William 
Stiles,  and  I  do  hereby  certify  that  I  am  a  notary  public  of 
the  state  of  Washington,  having  been  duly  appointed,  com- 
missioned and  sworn ;  that  a  notary  of  Washington  is  author- 
ized to  take  affidavits;  that  the  said  affidavit  was  sworn  to 

9  Boyd     V.     State,     7     Coldw.  point,    and,    in    the    absence    of 

(Tenn.)  69.  pro  f  to  the  contrary,  it  must  be 

1  Bouv.     Law    Diet.     (Kawle's  presumed  that  he  discharged  his 

Eev.),   tit.     "Jurat."     Where     an  duty:     Loney   v.   Bailey,   43   Md. 

affirmation  is  made  instead  of  an  10;  United  States  v.  McDermott, 

oath,  it  is  not  necessary  for  the  140  U.   S.   153,  11  Sup.  Ct.  Kep. 

certificate  of  the  officer  to  state  746,  35  L.  ed.  391;  Lutz  v.  Kin- 

that    the    affirmant    was    consci-  ney,  23  Nev.  279,  46  Pac.  257. 

entiously  scrupulous  of  taking  an  2  2  N.  J.  Gen.  Stats.,  p.  2334, 

oath.     It  is  the  duty  of  the  offi-  S  37. 
cer    to    satisfy    himself     on    that 


AFFIDAVITS.  135 

before  me  within  my  jurisdiction;  and  that  my  commission 
does  not  expire  until  January  23,  1912. 

[Notary's  Seal]  JOEN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington,  residing 
at  Seattle. 

[The  words  in  italics  should  be  changed  to  suit  the  occa- 
sion.] 

§  66.  Parts  of  an  Affidavit:  Jurat:  Necessity  of:  Place: 
Oath:  "Before  Me":  Signature:  Seal.— The  jurat  is  no 
part  of  the  affidavit  proper  ;^  but  becomes  of  great  importance 
in  proving  the  authenticity  of  the  instrument  because  it  is 
considered  prima  facie  evidence  that  the  statements  therein 
were  sworn  to  by  the  affiant.^  It  makes  no  difference  in  what 
part  of  the  affidavit  it  is  found,  so  long  as  the  facts  are  em- 
bodied therein.^  Custom,  however,  demands  that  it  be  placed 
directly  after  the  signature  of  the  affiant.^  Custom,  likewise, 
demands  that  it  contain  the  words  "before  me,"  or  some 
equivalent  words,^  and  a  date.®  And  by  statute  in  this  state 
the  notary's  seal  must  be  affixed  and  the  notary's  signature 
must  be  followed  by  the  words  "Notary  Public,"  to  which 
must  be  added  his  place  of  residence  in  all  cases  except  when 
the  affidavit  is  to  be  used  in  the  courts  of  Washington,  when 

1  Veal  V.  Perkerson,  47  Ga.  *  Kirby  v.  Gates,  71  Iowa,  100, 
92;  1  Ency.  of  PI.  &  Pr.,  p.  316;       32   N.   W.   191. 

2  Cyc.  Law  &  Proc,  p.  27;  Gar-  6  2   Cyc.   Law  &  Proc,  p.  28; 

rard  v.  Hitsman,  16  N.  J.  L.  124;  Clement  v.  Bullens,  159  Mass.  193, 

Bantley  v.  Finney,  43  Neb.  794,  34  N.  E.  173;  Smart  v.  Howe,  3 

62  N.  W.  213.  Mieh,  590. 

2  Bantley  v.  Finney,  43  Neb.  6  The  date  in  a  jurat  is  prima 
794,  62  N.  W.  213;  Smith  v.  facie  evidence  of  the  time  it  was 
Johnson,  43  Neb.  754,  62  N.  W.  sworn  to.  If  it  were  not  dated  it 
217;  Cleveland  v.  Stanley,  13  Ind.  could  be  proved  in  court,  on  objec- 
549;  1  Ency.  of  PI.  &  Pr.,  p.  316;  tion  raised,  when  the  oath  was  ad- 
Alford  v.  McCormac,  90  N.  C.  ministered:  Schoolcraft  v.  Thomp- 
151.  son,    7     How.    Pr.    (N.    Y.)    446; 

3  2  Cyc.  Law  &  Proc,  p.  27;  Freas  v,  Jones,  15  N.  J.  L.  20. 
Kleber  v.  Block,  17  Ind.  294;  Good  practice,  however,  demands 
Noble  V.  United  States,  Dev.  Ct.  that  the  jurat  be  dated.  The 
CI.  (U.  S.)  83;  Hanson  v.  Coch-  notary  should  be  sure  that  it  is. 
ran,  9  Houst.  (Del.)  192. 


136  LAW  FOE  NOTARIES  PUBLIC. 

the  seal  is  not  necessary,  [a]  It  is  hardly  necessary  to  add 
that  the  words  "sworn  to"  or  "affirmed"  must  appear  in 
the  jurat,  for  they  are  the  very  life  of  it.  If  a  Seattle  notary 
take  an  affidavit  in  Spokane  county,  he  should  place  the  venue 
in  Spokane  county,  as  explained  on  page  127 ;  but  he  should 
always  after  his  name  write  the  words,  "Notary  Public  in  and 
for  the  State  of  Washington,  residing  at  Seattle. ' ' 

To  impress  upon  the  notary  the  importance  of  the  signature 
of  the  affiant,  and  of  all  the  parts  of  the  jurat,  there  is  no 
case  in  all  the  books  more  striking  than  a  Washington  case, 
that  of  Tacoma  Grocery  Co.  v.  Draham,  8  Wash.  263,  40  Am. 
St.  Rep.  907,  36  Pac.  31,  in  which  the  opinion  was  handed 
down  by  Judge  Hoyt  in  February,  1894.  In  that  case  the 
validity  of  certain  judgments  and  sales  depended  upon  the 
regularity  of  certain  attachment  proceedings.  We  cannot  do 
better  than  to  quote  the  language  of  the  learned  judge  on  this 
occasion:  "It  is  contended  on  the  part  of  the  respondent  that 
the  judgment  under  which  this  sale  was  made  was  absolutely 
void,  for  the  reason  that  the  court  never  obtained  any  juris- 
diction of  the  subject  matter.  The  ground  of  such  contention 
is,  that  there  was  no  affidavit  filed  with  the  clerk  as  a  founda- 
tion for  the  attachment  proceedings. 

"Upon  this  question  the  record  shows  that  a  paper  was  filed 
in  the  form  of  an  affidavit  signed  by  a  person  who  represented 
himself  as  the  attorney  for  the  plaintiff,  but  there  is  nothing 
upon  the  face  thereof  to  show  that  it  was  ever  sworn  to. 
Such  being  the  case,  the  question  is  presented  as  to  the  force 
to  be  given  such  paper.  If  it  should  be  treated  as  having  no 
effect,  then  it  must  follow  that  the  attachment  proceedings 
founded  thereon  were  absolutely  void.  It  does  not  appear 
from  the  record  that  the  paper  was  in  fact  sworn  to.  If  it 
did,  it  is  probable  that  under  our  liberal  statute  as  to  amend- 
ment of  all  papers  in  attachment  proceedings,  the  omission 
of  the  officer  to  sign  the  jurat  could  be  treated  as  a  clerical 
error,  and  the  proceedings  sustained.  But,  in  the  absence 
of  proof  to  that  effect,  there  is  nothing  to  show  that  the  facts 
set  up  in  such  paper  ever  had  their  truth  vouched  for  by 
the  oath  of  any  person.  In  other  words,  the  paper  upon  its 
face  does  not  show  that  it  is  an  affidavit,  and  there  is  no  proof 


AFFIDAVITS.  137 

in  the  record  to  supplement  the  showing  upon  the  face  of  the 
paper.  It  must,  therefore,  for  the  purposes  of  this  case,  be 
considered  as  no  aflSdavit  at  all,  and  it  must  follow  that  there 
was  no  foundation  whatever  for  the  issuing  of  the  Avrit  of 
attachment,  and  that  it  was  absolutely  void.  Some  cases  have 
been  cited  by  counsel  for  appellant  where  the  absence  of  the 
signature  of  the  officer  to  the  jurat  has  been  held  not  to  be 

fatal  to  the  proceedings There  it  was  made  clearly  to 

appear  to  the  court  that  the  affidavit  had  been  in  fact  sworn 
to,  and  it  was  held  that,  as  the  required  facts  had  been  set 
forth  in  the  form  of  an  affidavit,  and  their  truth  vouched  for 
by  the  oath  of  the  party,  he  should  not  be  deprived  of  his 
rights  by  reason  of  the  inadvertent  omission  of  the  officer  to 
sign  the  jurat. " 

[a]  "It  shall  not  be  necessary  for  a  notary  public,  in  certifying 
an  oath  to  be  used  in  any  of  the  courts  in  this  state,  to  append  an 
impression  of  his  official  seal,  but  in  all  other  cases  when  the  notary 
public  shall  sign  any  instrument  officially,  he  shall,  in  addition  to  his 
name  and  the  words  'notary  public,'  add  his  place  of  residence  and 
affix  his  official  seal":  Laws  1890,  p.  474,  §5;  1  H.  C,  §333;  Bal. 
Code,  §  249;  2  Rem.  &  Bal.  Code,  §  8299. 

The  verification  of  a  lien  notice  must  have  affixed  thereto  the  official 
seal  of  the  notary  taking  the  acknowledgment,  as  such  a  notice  is  not 
intended  primarily  for  use  in  court,  and  is  therefore  not  within  the 
exception  provided  for  by  Laws  of  1890,  page  474,  Gates  v.  Brown,  1 
Wash.  470,  25  Pac.  914  (December,  1890),  opinion  by  Judge  Scott. 

The  opiission  of  the  notary  to  affix  his  seal  to  the  jurat  in  a  lien 
notice  sworn  to  before  him  renders  the  notice  invalid;  the  omission 
cannot  be  cured  by  the  introduction  of  proof,  on  the  trial  to  foreclose 
the  lien,  that  the  notice  had  been  in  fact  sworn  to:  Stetson  &  Post 
Mill  Co.  V.  McDonald  et  al.,  5  Wash.  496,  32  Pac.  108  (January,  1893), 
opinion  by  Judge  Scott. 

§  67.  Affidavits:  Criminal  Law. — The  law  as  to  making 
false  affidavits  by  the  notary  has  been  considered  under  an- 
other section,  page  96.  [a] 

[a]  "The  making  of  a  deposition,  certificate  or  affidavit  shall  be 
deemed  to  be  complete  when  it  is  subscribed  and  sworn  to  or  affirmed 
by  the  defendant  with  intent  that  it  be  uttered  or  published  as  true": 
Laws  1909,  p.  921,  §  104;  Bern.  &  Bal.  Code,  §  2356. 


138  LAW  FOR  NOTABIES  PUBLIC. 

§  68.    Affidavits:  Forms:  Interpreter's  Oath. 

FORM  XXVI. 

In  the  Superior  Court  of  the  State  of  Washington,  in 
and  for  the  County  of  King, 

John  Doe,  ^ 


Plaintiff, 

'VS. 

Richard  Boe, 

Defendant. 


^ 


No. 

Affidavit. 


State  of  Washington, 
County  of  King, — ss. 

Richard  Boe,  of  the  City  of  Seattle,  County  of  King, 
and  State  of  Washington,  being  duly  sworn  on  his  oath, 

defendant 
J.  S.     deposes  and  says,  that  he  is  the  plaintifl:  in  the  above- 
entitled  action;  that  he  has  reason  to  believe  and  does 
believe,  etc. 

BICHABD  BOE. 

Sworn  and  subscribed  to  before  me  this  10th  day  of 
December,  1910. 

[Notary's  Seal]  JOHN  STILES, 

Notary  Public  of  the  State  of  Washington,  residing  at 

Seattle. 

[The  words  in  italics  must  be  changed  to  suit  the 
case.] 

The  explanation  of  the  "J.  8."  in  this  form  and  the  "J.  D.'s"  in 
Form  XXYII  will  be  found  in  section  62. 


AFFIDAVITS.  139 

FORM  xxvn. 

State  of  Washington, 
County  of  King, — ss. 

Eichard  Roe,  being  duly  sworn  on  his  oath  deposes 

now 
J.  D.    and  says,  that  he  is  ^  a  resident  of  the  City  of  Seattle, 

County  of  King^  and  State  of  Washington;  that  for 
the  five  years  previous  to  the  1st  of  January,  1909, 
he  was  a  resident  of  Ellenshurg,  Kittitas  County, 
Washington;  that  while  residing  at  Ellenshurg,  John 
J.  D.        who  claimed  to  he  of  New  York  City, 

Stiles,  ^  ca>me  to  him  on  or  about  the  15th  day  of 
June,  1908,  at  his  office  in  Ellenshurg,  and  there  offered 
to  sell  to  him  certain  stock  he,  the  said  John  Stiles,  had 
in  gold  mines  in  Alaska. 


RICHARD  ROE. 

Subscribed  and  sworn  to  before  me  this  10th  day  of  Decem- 
ber, 1910,  at  Seattle,  King  County,  Washington,  by  Richard 
Roe,  and  I  do  hereby  certify  that  I  am  a  notary  public  of 
the  State  of  Washington,  having  been  duly  appointed,  com- 
missioned and  sworn;  and  that  the  said  affidavit  was  sworn 
to  before  me  within  my  jurisdiction;  and  that  my  commis- 
sion does  not  expire  until  January  23,  1912. 

[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington,  residing 
at  Seattle. 

[The  words  in  italics  must  be  changed  to  suit  the  case.] 

The  explanation  of  the  "J,  D.'s"  in  this  form  and  "J.  S."  in  Form 
XXVI  will  be  found  in  section  62. 

FORM  XXVIII. 

Interpreter's  Oath. 

You  do  solemnly  swear  that  you  are  conversant  with  the 
Polish  language  and  that  you  will  true  interpretation  make  of 
all  statements  made  in  the  taking  of  this  affidavit  according 
to  the  best  of  your  skill  and  understanding,  so  help  you  God? 

[The  words  in  italics  must  be  changed  to  suit  the  case.] 


140  LAW  FOR  NOTARIES  PUBLIC. 

FORM  XXIX. 

Jurat  When  Oath  is  Taken  Through  an  Interpreter. 

Sworn  to  and  subscribed  before  me  this  10th  day  of  De- 
cember, 1910.  And  I  hereby  certify  that  the  said  af&davit 
was  made  through  an  interpreter,  who  first  took  an  oath  be- 
fore me  that  he  is  conversant  with  the  language  of  affiant 
and  the  English  language  and  that  he  would  true  interpreta- 
tion make  of  all  statements  in  the  taking  of  the  affidavit. 

FORM  XXX. 

In  the  Justice's  Court  for  Kittitas  County,  State  of  Wash- 
ington :  Before  Jahn  Moe,  Esq.,  Justice  of  the  Peace. 

Richard  Roe, 


Plaintiff, 


No. 


vs.  ^  In  Attachment. 


John  Stiles, 

Defendant. 


Affidavit. 


State  of  Washington, 
County  of  Kittitas, — ss. 

John  Jones,  being  duly  sworn,  on  his  oath  says,  that  he  is 
agent  for  the  defendant  in  the  above-stated  case;  that  a 
writ  of  attachment  was  issued  out  of  the  justice's  court  for 
Kittitas  County,  John  Moe,  Esq.,  justice  of  the  peace,  against 
the  goods  and  chattels,  rights  and  credits,  moneys  and  effects 
of  the  said  John  Stiles,  at  the  suit  of  the  said  Richard  Roe, 
by  virtue  of  an  affidavit  made  by  the  said  Richard  Roe,  filed 
in  said  court,  in  which  the  said  Richard  Roe  states  that  at 
the  time  of  issuing  said  writ  of  attachment  John  Stiles,  the 
defendant  herein,  was  not  resident  within  the  state  of 
Washington. 

Deponent  states  that  the  said  John  Stiles  is  at  the  present 
time  and  has  been  continuously  for  the  past  ten  years  a 
resident  of  the  city  of  Tacoma,  county  of  Pierce,  and  state 
of  Washington ;  and  that  this  affidavit  was  sworn  to  because 
the  said  John  Stiles  has  been  for  the  past  two  weeks  on  a 
business  trip  to  various  towns  in  the  state  of  Idaho  and  will 
not  return  until  the  15th  of  the  present  month, 

JOHN  JONES. 


AFFIDAVITS.  141 

Sworn  to  and  subscribed  before  me  this  10th  day  of  De- 
cember, 1910. 

[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington,  residing 
at  EUensburg. 

FORM  XXXI. 
Affidavit  of  Nonmarriage. 

State  of  Washington, 
County  of  King, — ss. 

William  Stiles,  of  lawful  age,  being  first  duly  sworn,  upon 
his  oath  doth  depose  and  say:  I  now  reside,  and  for  the  ten 
years  last  past  have  resided  at  Renton,  in  the  county  of 
King  and  state  of  Washington;  and  for  the  five  years  last 
past  before  his  death  was  a  neighbor  of  Richard  Roe ;  I  was 
on  the  10th  day  of  December,  1910,  and  for  a  long  time  prior 
and  subsequent  thereto  personally  and  well  acquainted  with 
Richard  Roe,  the  grantee  named  in  a  deed  dated  the  1st  day 
of  February,  1910,  conveying  to  said  grantee  the  following 
described  real  estate  in  the  county  of  King  and  state  of 
Washington,  to  wit:  Lot  47  in  block  157,  map  of  Seattle 
tide  lands,  which  deed  is  recorded  in  Vol.  74  of  Deeds  at 
page  27  of  the  records  in  the  office  of  the  auditor  of  said 
King  county,  being  File  No.  40,760  of  said  records,  the  said 
Richard  Roe  being  the  grantor  who  conveyed  said  real  estate 
to  William  Jones  by  the  deed  dated  the  1st  day  of  August, 
1910,  recorded  in  Vol.  80  of  said  records  at  page  300,  File 
No.  46,010;  I  know  of  my  own  personal  knowledge  that  the 
said  Richard  Roe  was  an  unmarried  person  and  a  bachelor 
from  the  time  he  received  the  said  first-mentioned  convey- 
ance until  he  conveyed  the  same  as  above  set  forth.  Fur- 
ther affiant  saith  not. 

WILLIAM  STILES. 

Subscribed  and  sworn  to  before  me  on  this  10th  day  of 
December,  1910. 

[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington,  residing 
at  Seattle. 


142  LAW  FOR  NOTARIES  PUBLIC, 

FORM  XXXII. 

Affidavit  of  Identity. 

State  of  Washington, 
County  of  King, — ss. 

William  Stiles,  of  full  age,  being  first  duly  sworn  upon 
his  oath  doth  depose  and  say :  I  now  reside  and  for  the  ten 
years  last  past  have  resided  at  Renton  in  the  county  of  King 
and  state  of  Washington;  I  was  on  the  10th  day  of  Decem- 
ber, 1910,  personally  and  well  acquainted  with  Richard  Roe, 
the  grantee  named  in  a  certain  quitclaim  deed  executed  by 
Frank  Smith  to  said  Richard  Roe,  bearing  date  the  1st  day 
of  February,  1910,  and  conveying  to  said  grantee  the  follow- 
ing described  real  estate  in  the  county  of  Chehalis  and  state 
of  Washington,  to  wit:  Southeast  quarter  (SE.  ^)  of  section 
four  (4),  township  twenty  (20)  north,  of  range  thirteen 
(13),  E.  W.  M.,  which  deed  is  recorded  in  Vol.  72  of  Deeds, 
at  page  71  of  the  records  in  the  office  of  the  auditor  of  said 
Chehalis  County,  being  File  No.  40,750  in  said  records;  I 
know  of  my  personal  knowledge  that  the  said  Richard  Role 
is  the  identical  person  who  executed  the  deed  conveying  said 
real  estate  to  William  Jones  on  the  1st  day  of  August,  1910, 
by  the  deed  recorded  in  Vol.  72  of  said  records  at  page  40, 
the  same  being  File  No.  42,760 ;  I  know  that  the  correct  name 
of  said  person  is  Richard  Roe  and  that  the  same  was  written 
in  said  last-mentioned  deed  as  Richard  Role  by  mistake. 

.  WILLIAM  STILES. 

Subscribed  and  sworn  to  before  me  on  this  10th  day  of 
December,  1910. 

[Notary's  Seal]  JOHN  DOB, 

Notary  Publie  in  and  for  the  State  of  Washington  residing 
at  Seattle. 

FORM  XXXIII. 

Affidavit  and  List  of  Creditors. 

I  hereby  certify  that  the  following  is  a  true,  full  and 
correct  list  of  the  names  and  addresses  of  all  the  creditors 
of  William  Stiles,  doing  business  at  No.  4750  First  Avenue 


AFFIDAVITS. 


143 


South  in  the  city  of  Seattle,  in  the  state  of  Washington,  on 
this  10th  day  of  December,  1910,  together  with  the  amount 
of  indebtedness  due  or  owing,  or  to  become  due  or  owing 
by  him  to  each  of  such  creditors,  at  the  time  their  stock  of 
shoes  was  sold  to  William  Stiles. 

CREDITORS. 


Names 

Addresses 

Amount 

WILLIAM  STILES. 
State  of  Washington, 
County  of  King, — ss. 

Before  me  personally  appeared  William  Stiles,  who,  being 
by  me  first  duly  sworn,  upon  his  oath  doth  depose  and  say 
that  the  foregoing  statement  contains  the  names  of  all  the 
creditors  of  William  Stiles;  together  with  their  addresses, 
and  that  the  amount  set  opposite  each  of  said  respective 
names  is  the  amount  now  due  and  owing,  and  which  shall 
become  due  and  owing  by  him  to  such  creditors,  and  that 
there  are  no  creditors  holding  claims  due,  or  which  shall 
become  due  for  or  on  account  of  goods,  wares  or  merchan- 
dise purchased  upon  credit  or  on  account  of  money  borrowed 
to  carry  on  the  business  of  which  said  goods  are  a  part,  other 
than  as  set  forth  in  said  statement,  and  in  this  affidavit, 
within  the  personal  knowledge  of  the  affiant. 

WILLIAM  STILES. 


144  LAW  FOB  NOTARIES  PUBLIC. 

Subscribed  and  sworn  to  before  me  this  10th  day  of  De- 
cember, 1910. 

[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington  residing 
at  Seattle. 

FORM  XXXIV. 

In  Bankruptcy. 

Proof  of  Unsecured  Debt. 

In  the  District  Court  of  the  United  States  for  the  Eastern 
District  of  Washington. 

In  the  Matter  of  Richard  Roe,       )         In  Bankruptcy. 


.} 


Bankrupt,  j  No. 


United  States  of  America, 
Eastern  District  of  Washington, 
State  of  Washington, 
County  of  Spokane, — ss. 

At  Spokane,  in  said  Eastern  district  of  Washington,  on  the 
10th  day  of  December,  A.  D.  1910,  came  John  Jones,  of 
Spokane,  in  the  county  of  Spokane,  in  said  Eastern  district  of 
Washington,  and  state  of  Washington,  and  made  oath  and 
says  that  the  said  Richard  Roe,  the  person  against  whom  a 
petition  for  adjudication  of  bankruptcy  has  been  filed,  was 
at  and  before  the  filing  of  the  said  petition,  and  still  is  justly 
and  truly  indebted  to  said  deponent  in  the  sum  of  one  thou- 
sand dollars  and cents,  with  interest  from  January  1, 

1906,  at  six  (6)  per  cent  per  annum;  that  the  consideration 
of  said  debt  is  as  follows:  Money  lent  at  different  times; 
that  no  part  of  said  debt  has  been  paid ;  that  there  are  no 
setoffs  or  counterclaims  to  the  same ;  that  said  debt  became 
due  on  the  10th  day  of  January,  A.  D.  1908,  and  is  evidenced 
and  set  forth  in  the  statement  hereto  attached,  marked 
"Exhibit  A"  and  made  a  part  hereof. 

That  said  debt  consists  of  an  open  account  of  several  items 
maturing  at  different  dates;    that  the   average  due    date 

thereof  is  ;   that  no  note   has  been   received   for 

such  account,  nor  any  judgment  rendered  thereon,  and  that 
deponent  has  not,  nor  has  any  person  by  his  order  or  to  his 


AFFIDAVITS.  145 

knowledge  or  belief,  for  his  use,  had  or  received  any  man- 
ner of  security  for  said  debt  whatever. 

JOHN  JONES, 

Creditor. 

Subscribed  and  sworn  to  before  me,  this  10th  day  of  De- 
cember, A.  D.  1910. 

[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington  residing 
at  Spokane. 

FORM  XXXV. 

In  Bankruptcy. 

Proof  of  Secured  Debt. 

In  the  District  Court  of  the  United  States  for  the  "Western 
District  of  Washington,  Southern  Division. 

In  the  Matter  of  Richard  Roe,       1       -p    t^     i 

Bankrupt.  }      ^°  Bankruptcy. 

At  Seattle,  in  said  district  of  Western  Washington,  on  the 
10th  day  of  December,  A.  D.  1910,  came  John  Jones,  of 
Seattle,  in  the  county  of  King,  in  said  district  of  Western 
Washington,  and  made  oath,  and  says  that  Richard  Roe,  the 
person  by  whom  a  petition  for  adjudication  of  bankruptcy 
has  been  filed,  was  at  and  before  the  filing  of  said  petition, 
and  still  is,  justly  and  truly  indebted  to  said  deponent  in 

the  sum  of  five  hundred  dollars  and  cents;  that  the 

consideration  of  said  debt  is  as  follows:  One  black  horse 
known  by  the  name  of  **Jack,"  sixteen  hands  high,  with  two 
white  front  feet;  that  no  part  of  the  said  debt  has  been 
paid;  that  there  are  no  setoffs  or  counterclaims  to  the  same; 
and  that  the  only  securities  held  by  this  deponent  for  said 
debt  are  the  following:  (Here  state  securities.) 

JOHN  JONES, 

Creditor. 

Sworn  and  subscribed  to  before  me  this  10th  day  of 
December,  1910. 

[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington  residing 
at  Seattle. 
10 


146  lAW  FOB  NOTABIES  PUBLIC. 


CHAPTER  VIII. 

ACKNOWLEDGMENTS. 

§  69.    Object  of  Acknowledgment. 

§  70.     Definition. 

§  71.    Nature  of  Act. 

§  72.     Notary  may  Take:  Washington  Statutes. 

§  73.    :  When  Disqualified. 

S  74.     Jurisdiction. 

§  75.  Who  may  Make  Acknowledgment:  In  General:  Agent:  Partner- 
ship: Corporation:  Infant:  Insane  Person:  Intoxicated  Per- 
son: Married  Woman. 

§  76.     Who  may  Make  Acknowledgment:  Age  of  Grantor. 

§  77.  Who  may  Make  Acknowledgment:  Signature  of  Grantor:  Private 
Seal. 

§  78.     Time  of  Taking. 

§  79.  Certificate  of  Acknowledgment:  How  Taken:  Identity:  Explana- 
tion of  Instrument:  Unequivocal  Acknowledgment. 

§  80.     Certificate  of  Acknowledgment:   Forms. 

§  81.  Certificate  of  Acknowledgment:  By  Whom  Written:  Time  of 
Writing :   Place. 

!  83.  Certificate  ot  Acknowledgment:  Venue:  Date:  Signature  of 
Officer:  Official  Designation:  Seal. 

§  83.     Certificate  of  Authenticity  and  Conformity. 

§  84.     Amendment  of  Certificate. 

§  85.     Notary's  Liability  for  False  or  Defective  Certificate:  Damages. 

§  86.     Notary's  Liability  for  False  Certificate:  Criminal. 

§  87.  Miscellaneous  Statutes  of  Washington:  Husband  and  Wife: 
Power  of  Attorney:  Acknowledgment  of  Indians:  Eecording 
Plat:  Telegraphing  Instrument  for  Eecord:  Sale  of  Home- 
stead :  Eegistered  Land. 

§  88.    Validating  Acts. 

§  69.  Object  of  Acknowledgment. — The  object  of  all  the 
laws  on  acknowledgments  is,  to  place  a  protection  around 
deeds  or  other  important  instruments,  from  the  point  of 
view  of  the  purchaser ;  to  make  it  more  certain  that  the  per- 
son named  in  a  deed  or  instrument  intended  to  transfer  the 
property  or  right.  This  is  accomplished  by  compelling  the 
grantor  to  appear  before  a  public  officer  and  there  to  state 
that  he  is  the  grantor  in  the  instrument  and  that  he  means 
to  transfer  the  right  set  forth  in  the  instrument.  By  demand- 
ing that  all  deeds  [a]    and  certain  other  instruments  be 


ACKNOWLEDGMENTS.  147 

acknowledged  before  certain  public  officers  before  they  can 
be  placed  on  record  [b]  at  the  county  or  state  offices  it 
makes  acknoAvledgment  obligatory,  as  said  instruments  are 
not  fully  effective  until  recorded.  Before  a  person  can 
acknowledge  his  signature  he  must  find  some  public  officer 
with  whom  he  is  personally  acquainted,  and  that  is  a  fur- 
ther protection. 

In  some  states  an  instrument  is  not  effective  until  acknowl- 
edged although  completed  in  every  other  respect.^  But  in 
most  states  it  is  good  between  the  parties  though  not 
acknowledged;  in  other  words  the  acknowledgment  is  not 
part  of  the  deed.*  As  a  general  rule,  the  two  powers  which 
accompany  acknowledgment  are,  first,  to  entitle  the  instru- 
ment to  registration ;  and,  secondly,  to  render  the  instrument 
admissible  as  evidence.^  The  practice  of  acknowledging  in- 
struments is  a  creation  of  modem  statutes ;  it  was  unknown 
to  the  common  law.*  An  agreement  to  convey  need  not  be 
acknowledged,  [c]  [d]  [e] 

[a]  "A  deed  shall  be  in  writing,  signed  by  the  party  bound  thereby, 
and  acknowledged  by  the  party  making  it,  before  some  person  author- 
ized by  the  laws  of  this  state  to  take  acknowledgment  of  deeds":  Laws 
1888,  p.  50,  §  2;  1  H.  C,  §  1423 j  Bal.  Code,  §  4518;  2  Eem.  &  BaL  Code, 
§8746. 

[b]  "He  (county  auditor)  must,  upon  the  payment  of  his  fees  for  the 
same,  record  separately  in  large  and  well-bound  books  in  a  plain  hand, — 

"1.  Deeds,  grants  and  transfers  of  real  property,  mortgages  and  re- 
leases of  mortgages  of  real  estate,  powers  of  attorney  to  convey  real 

1  Parrott  v.  Kumpf,  102  HI.  250,  5  N.  E.  118.  In  Sicard  v. 
423;  1  Am.  &  Eng.  Ency.  of  Law  Davis,  6  Pet.  (U.  S.)  124,  8  L. 
&  Pr.,  p.  824;  Lewis  v.  Herrera  ed.  342,  Chief  Justice  Marshall 
(Ariz.),  85  Pac.  245;  208  U.  S.  said:  "The  -acknowledgment  or 
309,  28  Sup.  Ct.  Eep.  412,  52  L.  the  proof  which  may  authorize- 
ed.  506.  the  admission  of  the  deed  to  ree- 

2  1  Am.  &  Eng.  Ency.  of  Law  ord,  and  the  recording  thereof, 
t  Prac,  p.  824.  are    provisions    which    the     law 

8  1  Am.  &  Eng.  Ency.  of  Law  makes  for  the  security  of  creditors 

&  Prac,  p.   826;  Eeed  v.  Ukiah  and  purchasers." 

Bank,  148  Cal.  96,  82  Pac.  845;  4  Gould  v.  Howe,  131  HI.  490, 

Linton  v.   National   L.   Ins.    Co.,  23  N.  E.  602;  Moore  v.  Thomas, 

104  Fed.    584,    44    C.  C.  A.  54;  1   Or.   201;    French   T.    Gray,    2 

Bobinson    v.  Eobinson,    116    HI.  Conn.  92. 


148  LAW  FOB  NOTARIES  PUBLIC. 

estate,  and  leases  which  have  been  acknowledged  or  proved " 

Laws  1893,  p.  284,  §  11;  Bal.  Code,  §  411;  2  Kem.  &  Bal.  Code,  §  8786. 

[c]  Oregon  R.  and  N.  Co,  v.  Day,  3  Wash.  Ter.  252,  14  Pac.  588, 
January,  1887,  Mr.  Justice  Turner:  "Admitting  the  validity  of  the 
agreement,  and  we  may  say  in  passing,  that  we  see  no  necessity  that  an 
agreement  to  convey  land  should  be  sealed  or  acknowledged " 

[d]  Baker-Boyer  National  Bank  v.  Walter  Hughson  and  John  R. 
Reavis,  5  Wash.  100,  31  Pac.  423,  decided  October  22,  1892:  "This  ac- 
tion was  brought  to  recover  the  amount  alleged  to  be  due  upon  a  certain 
promissory  note  given  by  defendants  to  one  Culver,  and  by  him  indorsed 

to  plaintiff Two  things  are  alleged  in  the  answer  to  show  want 

of  consideration  for  the  note:  First,  that  the  contract  for  a  deed  for 
the  real  estate  which  was  to  be  conveyed  to  the  defendants,  for  the 
part  payment  of  which  said  note  was  given,  was  not  acknowledged,  and 
was,  therefore,  void.  Under  the  decisions  of  this  court  this  objection  is 
without  force,  aa  we  have  held  in  several  cases  that  a  contract  for  the 
conveyance  of  real  estate  was  entirely  valid  without  any  acknowledg- 
ment: See  Langert  v.  Ross,  1  Wash.  250,  24  Pac.  443;  Vail  v.  TiUman, 
2  Wash.  476,  27  Pac.  76." 

[e]  Anderson  v.  Wallace  Lumber  and  Mfg.  Co.,  30  Wash.  150,  70  Pac. 
247,  October,  1902,  Chief  Justice  Reavis:  "It  is  maintained  by  counsel 
for  respondent  that  such  contract  for  the  conveyance  of  real  property, 
to  be  valid,  must  comply  in  its  form  with  sections  4517  and  4518,  Bal- 
linger's  Code  [2  Rem.  &  Bal.  Code,  §§  8745,  8746],  which  prescribe  that 
all  conveyances  of  real  estate,  and  all  contracts  creating  or  evidencing 
any  encumbrance  thereon,  shall  be  by  deed,  and  that  such  deed  shall  be 
signed  and  acknowledged.  It  may  be  observed  that  these  sections  relate 
only  to  conveyances,  and  to  contracts  creating  or  evidencing  encum- 
brances; they  do  not  necessarily  include  agreements  to  convey." 

§  70.  Definition. — An  acknowledgment  is  a  formal  dec- 
laration or  admission  before  an  authorized  court  or  public 
ofl&cer,  by  a  person  who  has  executed  an  instrument,  that 
such  instrument  is  his  act  and  deed.^  The  word  is  also  used 
to  designate  the  certificate  of  the  officer,  stating  that  the  in- 
strument was  acknowledged. 2 

1  1  Am.  &  Eng.  Ency.  of  Law  "duly  acknowledged"  unless  there 
&  Prac,  p.  820;  De  Wolf  skill  v.  was  not  only  the  oral  acknowl- 
Smith,  5  Cal.  App.  175,  89  Pac.  edgment  but  the  written  certifi- 
1001;  Taylor  v.  United  States,  45  cate  also.  Vann,  J.,  said:  "The 
Fed.  531;  Strong  v.  United  word  as  commonly  used  by  the 
States,   34   Fed.   17.  legislature,   the    courts,    and   the 

2  See  Rogers  t.  Pell,  154  N.  T.  bar,  means  both  the  act  and  the 
518,  49  N.  E.  75,  wherein  it  was  written  evidence  thereof  made 
held  that  an  instrument  was  not  by  the  officer," 


ACKNOWLEDGMENTS.  149 

§  71.  Nature  of  Act. — By  the  great  weight  of  authority 
the  taking  of  an  acknowledgment  is  held  to  be  a  ministerial 
act,  though  in  New  Jersey,  Mississippi,  North  Carolina, 
Texas,  Virginia,  and  a  few  other  states  it  is  held  to  be  a 
judicial  act.^  In  Washington  the  supreme  court  has  held 
that  it  is  merely  ministerial  in  its  nature,  [a]  A  full  discus- 
sion of  this  subject  can  be  found  on  page  40,  section  12. 

[a]  Keene  Guaranty  Savings  Bank  v.  Lawrence,  32  Wash.  577,  73 
Pac.  680,  September,  1903 :  "The  taking  of  an  acknowledgment  by  a 
notary  public  is  a  ministerial  act,  and  may  be  performed  by  anyone 
qualified  to  act  as  notary:  Spokane  and  Idaho  Lumber  Co.  v.  Loy,  21 
Wash.  501,  58  Pac.  672,  60  Pac.  1119;  Nixon  v.  Post,  13  Wash.  181,  43 
Pac.  23,  December,  1895,  Hoyt,  C.  J."  Where  land  is  deeded  to  a  wife 
as  her  separate  property,  the  acknowledgment  of  the  grantors  may  be 
taken  before  the  grantee's  husband,  if  he  is  authorized  to  take  acknowl- 
edgments. 

§  72.  Notary  may  Take:  Washington  Statutes. — ^Accord- 
ing to  the  laws  of  1879  [a]  and  1890  [b]  a  notary  public  of 
Washington  may  take  acknowledgments. 

[a]  "Acknowledgments  of  deeds,  mortgages,  and  other  instruments  in 
writing  may  be  taken,  in  this  state,  before  a  .  .  .  .  qualified  notary 
public":  Laws  1879,  p.  110,  §  1;  Code  of  1881,  §  2315;  1  H.  C,  §  1430; 
Bal.  Code,  §  4526;  2  Eem.  &  Bal.  Code,  §  8754. 

[b]  "Every  duly  qualified  notary  public  is  authorized'  in  any  county 
in  this  state, — 

"(2)  To  take  acknowledgments  of  all  deeds  and  other  instruments  of 
writing  and  certify  the  same  in  the  manner  required  by  law":  Laws 
1890,  p.  474,  §  4;  1  H.  C,  §  332;  BaL  Code,  §  248;  2  Eem.  &  Bal.  Code, 
§  8298. 

§  73.  Notary  may  Take:  When  DisquaKfied.— The  sub- 
ject of  the  disqualification  of  a  notary  of  the  state  of  Wasli- 

1  1  Am.  &  Eng.  Ency.  of  Law  Bank  v.  McCarty,  149  N.  Y.  71, 

&  Prac,  p.  868;  Woodland  Bank  43  N.  E.  427;  Eiddle  v.  Keller,  61 

V.  Oberhaus,  125  Cal.  320,  57  Pac.  N.  J.  E.  513,  48  Atl.  818;   Har- 

1070;  People  v.  Bartels,  138  111.  mon    v.    Magee,    57    Miss.    410; 

322,    27    N.   E.    1091;     Common-  Greenleaf-Johnson  Lumber  Co.  v. 

wealth  V.  Johnson,  123  Ky.  437,  Leonard,  145  N.  C.  339,  50  S.  E. 

124  Am.  St.  Eep.  368,  96  S.  W.  134;     Nicholson      v.      Gloucestei 

801,  13    Ann.  Cas.  716;    Barnard  Charity  School,  93  Va.  101,  24  S. 

V.    Schuler,    100    Minn.    289,    110  E.  899. 
N.  W.  9C6;  Albany  County  Sav. 


150  LAW  FOR  NOTARIES  PUBLIC. 

ington  to  take  certain  acknowledgments  has  been  considered 
before,  section  32,  page  87. 

§  74.  Jurisdiction. — ^A  notary  is  given  the  power  to  take 
acknowledgments  anywhere  in  the  state  of  "Washington  by 
the  Laws  of  1890.  [a]   [b] 

[a]  "Every  notary  public  shall  be  appointed  for  the  state,  and  shall 
hold  his  office  for  four  years,  unless  sooner  removed  by  the  governor": 
Laws  1890,  p.  473,  §  2;  1  H.  C,  §  330;  Bal.  Code,  §  246;  2  Kem.  & 
Bal.  Code,  §  8296. 

[b]  See  §  72,  note  [b]. 

§  75.  Who  may  MaJce  Acknowledgments:  In  General: 
Agent:  Partnership:  Corporation:  Infant:  Insane  Person: 
Intoxicated  Person:  Married  Woman. — The  proper  and  only 
persons  to  acknowledge  the  execution  of  an  instrument  are, 
of  course,  the  persons  who  execute  it.  Any  other  acknowl- 
edgment, except  by  a  lawfully  authorized  agent,  is  of  no 
effect.^  If  there  are  several  grantors  each  should  acknowl- 
edge his  signature.^  An  acknowledgment  may  be  made  by 
a  duly  authorized  agent  or  attorney.*  When  an  agent  or 
attorney  makes  an  acknowledgment  the  certificate  must 
show  that  it  is  made  on  behalf  of  the  principal.*  [a]  There 
should  be  a  recital  in  the  certificate  to  the  effect  that  he  is 
the  duly  authorized  agent ;  the  proof  of  the  agent 's  authority 
need  not  be  stated  in  the  certificate.^  [a] 

Ordinarily,  an  instrument  running  in  the  name  of  a  part- 
jiership  and  signed  with  the  firm  name  may  be  acknowl- 

1  1  Am.  &  Eng,  Ency.  of  Law  of  Law  &  Prac,  p.  966;  Wright  v. 
&  Prac,  p.  848;  Middlesborough  Baddin,  100  Mass.  319.  "Power  to 
Water  Works  Co.  v.  Neal,  105  acknowledge  is  implied  from  a 
Ky.  586,  49  S.  W.  428,  where  a  power  of  attorney  to  execute  the 
subscribing  witness  acknowl-  instrument":  Eobinson  v.  Maul- 
edged;  Hunter  v.  Bryan,  6  N.  C.  din,  11  Ala.  977. 

178,  5  Am.  Dec.  526.  ■*  Pfeiffer    v.    Cressey,    85    111. 

2  1  Am.  &  Eng.  Ency.  of  Law  App.  Ill;  Campbell  v.  Hough,  73 
&  Prac,  pp.  848,'  849.  N.  J.  Eq.  601,  68  Atl.  759. 

3  Richmond  v.  Voorhees,  10  o  Detroit  v.  Jackson,  1  Doug. 
Wash.  320,  38  Pac  1014;  see  (Mich.)  106;  1  Am.  &  Eng.  Ency. 
§  69,  note  [b]  ;  1  Am.  &  Eng.  Ency.  of  Law  &  Prac,  p.  907. 


ACKNOWLEDGMENTS.  151 

edged  by  any  one  of  the  partners.^  Each  member  of  a  lim- 
ited partnership  in  the  state  of  Washington,  however,  must 
acknowledge  the  certificate  drawn  in  duplicate  under  the 
law  of  1869,  [b]  The  acknowledgment  of  a  corporation  may 
be  made  by  the  president,  vice-president,  secretary,  treas- 
urer, or  any  authorized  officer  or  agent,  [c]  An  acknowl- 
edgment may  be  made  by  an  infant,  but  that  will  not  prevent 
him  from  revoking  the  transfer^  The  acknowledgment  by 
an  infant,  in  open  court,  of  a  deed  executed  by  him  does  not 
render  it  irrevocable.*  An  acknowledgment  by  an  insane 
person  eould  be  set  aside  upon  showing  that  fact.®  Likewise 
the  acknowledgment  of  an  intoxicated  person  if  the  degree 
of  intoxication  were  such  that  he  is  deprived  of  his  under- 
standing.^^  The  acknowledgment  of  a  married  woman  in 
this  state  is  taken  just  the  same  as  that  of  a  man  or  single 
woman. 

[a]  Richmond  v.  Voorhees  et  al.,  10  Wash.  316,  38  Pac.  1014, 
December,  1894,  Hoyt,  J.:  "The  mortgage  is  further  attacked  upon 
the  ground  that  the  certificate  of  acknowledgment  does  not  show  that 
it  was  ever  acknowledged  by  Mary  A.  Voorhees  in  person,  or  by 
Peter  Voorhees  as  her  attorney  in  fact.  Such  certificate  contains  the 
usual  recital  of  the  appearance  and  acknowledgment  of  the  instrument 
by  Peter  Voorhees,  and  thereafter  the  following:  'And  I  do  further 
certify  that  personally  appeared  Peter  Voorhees,  personally  known  to  me 
to  be  the  same  person  whose  name  is  subscribed  to  the  within  instru- 
ment as  the  attorney  in  fact  of  Mary  A.  Voorhees,  his  wife,  and  the 
said  Peter  Voornees  duly  acknowledged  to  me  that  he  subscribed  the 
name  of  Mary  A.  Voorhees  thereto  as  principal,  and  his  own  as  attor- 
ney in  fact;  and  that  said  Peter  Voorhees  acknowledged  to  me  that  he 
executed  the  same  freely  and  voluntarily  and  for  the  uses  and  purposes 
therein  mentioned.'  And  in  our  opinion  it  showed  a  sufficient  acknowl- 
edgment by  the  husband  in  behalf  of  the  wife,  as  well  as  in  his  own 
behalf.  If  it  had  been  intended  thereby  only  to  certify  the  acknowledg- 
ment by  the  husband  for  himself,  there  would  have  been  no  need  of  that 

6  1  Am.  &  Eng.  Ency.  of  Law  8  Slaughter  v.  Cunningham,  24 

&  Prac,  p.  965;  Klumpp  v.  Gard-  Ala.  260,  60  Am.  Dec.  463. 

ner,  114  N.  Y.  153,  21  N.  E.  99.  9  22  Cyc.  Law  &  Proc,  p.  1171. 

1  22  Cyc.  Law  &  Proc,  p.  531;  lO  14     Cyc.    Law    &    Proc,    p. 

Hastings    v.    DoUarhide,    24   €al.  1103;  Wright  v.  Waller,  127  Ala. 

195;  MacGreal  v.  Taylor,  167  TJ.  557,   29    South.   57,   54   L.   E.   A. 

S.  688,  17  Sup.  Ct.  Eep.  961,  42  440. 
L.  ed.  326. 


152  LAW  FOB  NOTARIES  PUBLIC. 

part  of  the  certificate  of  acknowledgment  above  set  forth.  Hence,  there 
could  have  been  but  one  purpose  on  the  part  of  the  acknowledging 
officer  in  including  it  in  his  certificate,  and  that  was  to  show  a  proper 
acknowledgment  by  the  attorney  in  fact  for  and  on  behalf  of  his  prin- 
cipal." 

[b]  "The  persons  forming  such  partnership  shall  make  and  severally 
subscribe  a  certificate,  in  duplicate,  and  file  one  of  such  certificates  with 
the  county  auditor  of  the  county  in  which  the  principal  place  of  business 
of  the  partnership  is  to  be.  Before  being  filed,  the  execution  of  such  cer- 
tificate shall  be  acknowledged  by  each  partner  subscribing  it,  before 
some  officer  authorized  to  take  acknowledgment  of  deeds,  and  such  cer- 
tificate shall  contain  the  name  assumed  by  the  partnership  and  under 
which  its  business  is  to  be  conducted,  the  names  and  respective  places 
of  residence  of  all  the  general  and  special  partners,  the  amount  of  capi- 
tal which  each  special  partner  has  contributed  to  the  common  stock,  the 
general  nature  of  the  business  to  be  transacted,  and  the  time  when  the 
partnership  is  to  commence,  and  when  it  is  to  terminate":  Laws  1869, 
p.  380,  §3;  1  H.  C,  §2919;  Bal.  Code,  §3612;  Kem.  &  Bal.  Code, 
§  8361. 

[e]  See  p.  157. 

§  76.    Who  may  Make  Acknowledgment :  Age  of  Grantor. 

By  statute  in  this  state  a  male  must  be  twenty-one  (21) 
years  of  age  and  a  female  eighteen  (18)  years  of  age  before 
they  are  able  to  transfer  real  property. [a]  But  a  female 
married  to  a  man  of  full  age  is  deemed  and  taken  to  be  of 
full  age.  [b]  A  husband  who  is  a  minor  becomes  by  the  case 
of  In  re  Hollopeter,  52  Wash.  41,  132  Am.  St.  Kep.  952,  100 
Pac.  159,  21  L.  R.  A.,  N.  S.,  847,  of  full  age  in  the  eyes  of 
the  law  upon  the  performance  of  the  marriage  ceremony. 

[a]  "Males  shall  be  deemed  and  taken  to  be  of  full  age  for  all  pur- 
poses at  the  age  of  twenty-one  years  and  upwards;  females  shall  be 
deemed  and  taken  to  be  of  full  age  at  the  age  of  eighteen  years  and 
upwards":  Laws  1866,  p.  92,  §1;  Cd.  1881,  §2363;  1  H.  C,  §  1416; 
Bal.  Code,  §  4511;  2  Kem.  &  Bal.  Code,  §  8743. 

[b]  "All  females  married  to  a  person  of  full  age  shall  be  deemed 
and  taken  to  be  of  full  age":  Laws  1863,  p.  434,  §  2;  Cd.  1881,  §  23G4; 
1  H.  C,  §  1417;  Bal.  Code,  §4512;  2  Rem.  &  Bal.  Code,  §8744. 

§  77.  Who  may  Make  Acknowledgments:  Signature  of 
Grantor:  Private  Seal. — The  question  of  the  proper  manner 
for  a  person  to  sign  his  name  is  taken  up  under  the  subject 
of  affidavit;  it  will  be  found  on  page  132,  section  64.    It 


ACKNOWLEDGMENTS.  153 

might  be  added  here,  however,  that  a  private  seal,  that  is, 
a  piece  of  red  paper  or  sealing  wax,  immediately  after  the 
grantor's  name,  is  not  necessary  since  the  law  of  1888.  [a] 

[a]  "The  use  of  private  seals  upon  all  deeds,  mortgages,  leases,  bonds, 
and  other  instruments  and  contracts  in  writing  is  hereby  abolished,  and 
the  addition  of  a  private  seal  to  any  such  instrument  or  contract  in 
writing  hereafter  made  shall  not  affect  its  validity  or  legality  in  any 
respect":  Laws  1888,  p.  50,  §3,  and  page  184,  §1;  1  H.  C,  §1427; 
Bal.  Code,  §  4523;  2  Rem.  &  Bal.  Code,  §  8751. 

§  78.  Time  of  TaJring. — The  acknowledgment  should  be 
taken  after  the  deed  or  instrument  is  otherwise  complete ;  a 
notary  should  refuse  to  take  an  acknowledgment  where 
there  are  blanks  left  in  a  deed  to  be  filled  in  afterward. 

As  to  whether  an  acknowledgment  taken  on  a  legal  holi- 
day or  Sunday  is  valid  depends  on  the  statutes  of  the  state. 
There  is  no  statute  in  Washington  which  would  make  the  act 
invalid. 

§  79.  Certificate  of  Acknowledgment :  How  Taken :  Iden- 
tity: Explanation  of  Instrument:  Unequivocal  Acknowledg- 
ment.— The  ancient  custom  of  taking  acknowledgments  in 
open  court  ^  has  degenerated  into  a  very  unceremonious  pro- 
ceeding. There  are  some  requirements,  however,  which 
must  be  followed: 

First,  the  notary  must  be  sure  of  the  identity  of  the  per- 
son appearing  before  him;  that  is,  he  must  be  certain  that 
the  person  named  in  the  deed  or  other  instrument  and  the 
person  who  desires  to  acknowledge  his  signature  are  one  and 
the  same  person.  The  statute  setting  forth  the  certificate 
says,  "to  me  known  to  be  the  individual  described  in  and 
who  executed  the  within  instrument.  "^  If  the  notary  has 
known  the  person  for  four  or  five  years  there  would  then 
be  no  question,  but  if  someone  brings  a  stranger  to  him,  and 
after  an  introduction  would  ask  the  notary  to  take  the  ac- 
knowledgment of  the  stranger,  it  would  be  incumbent  upon 

1  Merritt  v.  Yates,  71  HI.  636;  2  2  Rem.  &  Bal.  Code,  §  8761; 

23  Am.  Rep.  128;   1  Am.  &  Eng.       Bal.  Code,  §  4533. 
Ency.  of  Law  &  Prac,  p.  873. 


154  LAW  FOB  NOTARIES  PUBLIC. 

the  notary  to  satisfy  himself  to  the  degree  of  care  and  dili- 
gence of  a  reasonably  prudent  man  that  the  stranger  is  the 
person  he  claims  to  be.^  In  some  eases  an  introduction  by 
a  reliable  person  known  to  the  officer  has  been  regarded  as 
sufficient.'*  Just  what  the  courts  of  Washington  would  de- 
mand in  the  way  of  personal  friendship  or  acquaintanceship, 
or  how  far  they  would  accept  an  introduction  just  before 
an  acknowledgment,  it  has  never  been  necessary  for  them 
to  decide.  If  the  notary  is  to  take  the  acknowledgment  of 
a  person  he  has  never  before  known,  it  would  be  safe  prac- 
tice to  follow  the  courts  of  New  York  and  Minnesota  and 
demand  sworn  testimony  of  two  persons  as  to  his  identity .° 

Secondly,  if  there  is  any  question  as  to  the  ability  of  the 
person  to  understand  the  meaning  and  contents  of  the  deed 
or  instrument,  it  is  incumbent  upon  the  notary  to  make  a 
full  explanation  of  the  contents  thereof.  If  he  is  a  man 
of  intelligence  and  states  that  he  knows  the  contents,  that 
would  be  sufficient;  otherwise  the  notary  should  satisfy 
his  own  mind  that  the  grantor  appreciates  his  act.  At 
times  this  would  necessitate  an  interpreter  of  some  foreign 
language  or  of  the  deaf  and  dumb  signs.^[a] 

Thirdly,  the  notary  should,  after  satisfying  himself  of  the 
identity  of  the  person  and  that  he  knows  the  contents  of  the 

8  Barnard      v.      Schuler,      100  witnesses:  State    v.    Eyland,    163 

Minn.  289,  110  N.  W.  966;  Lind-  Mo.  280,  63  S.  W.  819. 
ley  V.  Lindley,  92  Tex.  446,  49  S.  6  Where    the    grantor    is   old, 

W.  573.  decrepit,  and  ignorant,  it  is  the 

4  1  Am.  &  Eng.  Ency.  of  Law  duty  of  the  officer  authenticating 

&  Prac,  p.  875.  the   execution    of    the     deed    to 

8  People  V.   Schooley,   87   Hun  make  known  to  him  its  contents 

(N.  Y.),  391,  35  N.  Y.  Supp.  429;  by   such    means    as   will    enable 

Bidwell  V.  Sullivan,  17  App.  Div.  him  to    comprehend    the   'nature 

(N.  Y.)  629,  45  N.  Y.  Supp.  530;  and  effect  of  his  act.     A  simple, 

Barnard    v.    Schuler,    100    Minn.  formal    reading    of    the    instru- 

289,  110  N.  W.  966.     The  Calif  or-  ment     is    insufficient:     Lyons    v. 

nia  statute  requires  the  oath  of  Van  Eiper,  26  N.  J.  Eq.  337;   1 

a      credible     witness:      Joost    v.  Am.   &   Eng.    Ency.    of    Law    & 

Craig,  131   Cal.   504,  82   Am.  St.  Prac,  p.  875;  Pfeiffer  v.  Eiehn, 

Rep.  374,  63  Pae.  840.     The  Mis-  13     Cal.     643;     Taylor     v.     Noel 

souri  statute  requires  the  sworn  (Tenn.),  59  S.  W.  377;  Morrison 

testimony  of  at  least  two  credible  v.  Morrison,  27  Gratt.  (Va.)  190. 


ACKNOWLEDGMENTS.  155 

deed  or  instrument,  either  see  the  signature  written  or  ask 
him  if  that  is  his  signature,  and  then  whether  he  acknowl- 
edges that  "he  signed  and  sealed  the  same  as  his  free  and 
voluntary  act  for  the  uses  and  purposes  therein  men- 
tioned."''^ The  acknowledgment  must  be  unequivocal;  a 
casual  admission  in  the  presence  of  an  officer  by  a  person 
who  has  signed  a  conveyance,  that  he  executed  it,  does  not 
authorize  the  officer  to  make  a  certificate  that  it  was  ac- 
knowledged.® 

"In  order  to  call  into  exercise  the  authority  of  the  officer 
to  make  the  certificate,  the  grantor  must  appear  before 
him  for  the  purpose  of  acknowledging  the  instrument, 
and  his  admission  that  he  had  executed  it  must  be  made 
with  a*  view  to  give  it  authenticity,"  are  the  words  of  a 
Texas  court.* 

[a]  Jackson  v.  Tatebo,  3  Wash.  464,  28  Pac.  916,  January,  1892, 
Dunbar,  J. :  "The  evidence  in  this  case  conclusively  shows  that  the  plain- 
tiff was  an  ignorant,  unlettered  Indian;  that  his  knowledge  of  the 
English  language  was  exceedingly  limited;  that  he  had  no  knowledge 
whatever  of  legal  transactions  or  the  force  or  effect  of  legal  instruments. 
It  is  not  disclosed  by  the  testimony  whether  Tatebo  was  an  Indian  or 
not;  but  from  the  whole  history  of  the  case  we  think  probably  he  was 
a  half-breed  Indian.  At  all  events,  he  seems  to  be  related  to  the  In- 
dians, and  related  by  marriage  to  Jackson.  The  evidence  shows  that  he 
was  a  sharp,  shrewd,  energetic  man,  and  that  he  acted  as  Jackson's 
agent  and  confidential  adviser,  and  that  Jackson  placed  confidence  in 
him.  This  is  shown  by  Tatebo's  testimony,  as  also  by  Jackson's.  It 
also  shows  that  he  had  been  employed  as  deputy  United  States  marshal 
and  deputy  constable,  and  was  frequently  employed  as  a  detective.  We 
think  sufficient  is  established,  and  in  fact  uneontroverted,  to  shift  the 
burden  of  proof  and  place  it  upon  defendant  to  show  that  the  import 
of  the  deed  was  understood  by  Jackson  at  the  time  he  signed  it. 

"  'When  an  action  is  brought  to  set  aside  a  deed  executed  by  a  person 
unable  to  read  for  misrepresentation  of  its  contents  or  effects,  the  bur- 
den of  proof  rests  upon  the  defendant.  In  a  case  of  this  kind,  part  of 
the  necessary  proof  of  the  execution  of  the  instrument  consists  in  show- 
ing that  it  was  read  or  its  contents  made  known  to  the  grantor.  An 
acknowledgment,  however,  according  to  the  statute,  before  an  officer 
designated  by  the  law,  is  equivalent  to  proof  that  the  grantor  possessed 

T  2  Eem.  &  Bal.  Code,  §8761;  »  Breitling  v.  Chester,  88  Tex. 

Bal.  Code,  §  4533.  586,  32  S.  W.  527. 

8  1  Am.  &  Eng.  Ency.  of  Law 
&  Prac.,  p.  873,  and  notes  9,  [a). 


156  LAW  FOB  NOTARIES  PUBLIC. 

knowledge  of  its  contents,  if  the  acknowledgment  contains  a  certificate 
that  the  officer  made  known  the  contents  to  the  grantor  before  acknowl- 
edgment' :  Devlin  on  Deeds,  §  229. 

"But  in  this  instance  the  certificate  of  the  officer  who  took  the  ac- 
knowledgment fails  to  show  that  he  made  known  the  contents  of  the 
deed  to  Jackson  before  acknowledgment.  'To  read  an  instrument  in 
English  to  a  person  who  is  unable  to  understand  the  language  would 
seem  to  be  insufficient' :  Devlin  on  Deeds,  §  228.  In  this  case  there  is  a 
plain  contradiction  between  the  plaintiff  and  the  defendant  in  regard  to 
the  understanding  of  the  grantor  with  reference  to  the  instrument  exe- 
cuted. Jackson  positively  swears  that  when  Tatebo  interpreted  the  deed 
to  him  he  interpreted  it  as  a  power  of  attorney  to  sell;  that  he  thought 
it  was  a  power  of  attorney;  that  it  was  a  power  of  attorney  that  he 
had  agreed  to  give,  and  that  he  had  no  thought  of  executing  any  other 
instrument;  that  he  never  had  received  a  cent  from  Tatebo  in  considera- 
tion of  the  execution  of  said  instrument.  Mr.  Tatebo  swears. that  he 
interpreted  the  deed  just  as  it  was  written,  and  that  Jackson  under- 
stood it  and  consented  to  it,  and  that  he  had  paid  Jackson,  in  considera- 
tion therefor,  the  sum  of  one  himdred  dollars  in  money,  and  agreed  to 
perform  other  services,  Tustin,  who  drew  the  deed,  swears  that  he  read 
the  same  to  Jackson,  but  does  not  swear  that  Jackson  understood  it. 
In  fact,  it  is  pretty  plain  that  he  did  not  understand  it,  and  that  it  was 
conceded  that  he  did  not,  or  there  would  have  been  no  necessity  for  an 
interpretation.  No  one  else  who  was  there  understood  the  language  in 
which  the  deed  was  interpreted." 

§  80.  Certificate  of  Acknowledgment:  Forms. — The 
forms  of  certificates  to  be  used  for  individuals  and  corpo- 
rations are  found  in  the  laws  of  1886  and  1903.  [a]  [b]  It 
will  be  noticed  that  they  need  only  be  followed  "substan- 
tially, "[c]  so  that  a  certificate  in  different  words  but  con- 
taining all  the  material  facts  would  be  sufficient.  It  is  good 
practice,  however,  to  follow  the  forms  word  for  word. 

[a]  A  certificate  of  acknowledgment,  substantially  in  the  following 
form,  shall  be  sufficient: 

FORM  XXXVI. 
State  of  Washington, 
County  of , — 88. 

I  (here  give  name  of  officer  and  official  title)  do  hereby  certify  that 

on  this  day  of  ,  18 — ,  personally  appeared  before  me 

(name  of  grantor,  and  if  acknowledged  by  wife,  her  name,  and  add 
"his  wife"),  to  me  known  to  be  the  individual  or  individuals  described  in 
and  who  executed  the  within  instrument,  and  acknowledged  that  he 
(she  or  they)  signed  and  sealed  the  same  as  his  (her  or  their)  free  and 
voluntary  act  and  deed,  for  the  uses  and  purposes  therein  mentioned. 


ACKNOWLEDGMENTS.  157 

Given  under  my  hand  and  official  seal  this  ■  day  of  , 

A.  D.  18—. 


(Signature  of  officer) : 
Laws  1886,  p.  179,  §7;  Laws  1888,  p.  52,  §2;  1  H.  C,  §1437;  BaL 
Code,  §4533  J  2  Kem.  &  Bal.  Code,  §  8761. 

[b]  Certificates  of  acknowledgments  of  an  instrument  acknowledged 
by  a  corporation  substantially  in  the  following  form  shall  be  sufficient: 

FORM  xxxvn. 


State  of , 

County  of  , — ss. 

On  this  day  of  ,  A.  D.  190 — ,  before  me  personally 

appeared  ,  to  me  known  to  be  the   (president,  vice-president, 

secretary,  treasurer,  or  other  authorized  officer  or  agent,  as  the  case  may 
be)  of  the  corporation  that  executed  the  within  and  foregoing  instru- 
ment, and  acknowledged  the  said  instrument  to  be  the  free  and  volun- 
tary act  and  deed  of  said  corporation,  for  the  uses  and  purposes  therein 
mentioned,  and  on  oath  stated  that  he  was  authorized  to  execute  said 
instrument  and  that  the  seal  affixed  is  the  corporation  seal  of  said 
corporation. 

Li  witness  whereof,  I  have  hereunto   set  my  hand  and   affixed   my 
official  seal  the  day  and  year  first  above  written. 


(Signature  and  title  of  officer) : 
Laws  1903,  p.  245,  §  1;  2  Rem.  &  Bal.  Code,  §  8761%. 

[c]  Kley  V.  Geiger,  4  Wash.  484,  30  Pac.  727,  June,  1892,  Scott,  J.: 
"The  objection  to  the  acknowledgment  is,  that  the  officer  before  whom 
the  same  was  taken  did  not  certify  that  said  defendants  executed  said 
mortgage  freely  and  voluntarily.  The  acknowledgment  does  state  that 
said  parties  appeared  before  such  officer,  and  acknowledged  that  they 
signed  and  executed  the  same,  and  contains  the  further  statement  that 
upon  the  separate  examination  of  the  said  Ida  Geiger  apart  from  her 
husband  she  acknowledged  that  she  signed  the  same  voluntarily.  There 
is  no  force  in  the  objection  to  the  acknowledgment.  Section  1435  of  the 
General  Statutes  [Rem.  &  Bal.  Code,  §  8759],  which  was  in  force  at  that 
time,  provides  that  certificates  of  acknowledgment  shall  recite  in  sub- 
stance that  the  deed,  mortgage  or  instrument  was  acknowledged  by  the 
person  or  persons  whose  name  or  names  are  signed  thereto  as  grantor. 
Section  1437  [Rem.  &  Bal.  Code,  §6761],  which  was  also  in  force  at 
that  time,  provides  that  the  certificate  of  acknowledgment  substantially 
in  the  form  there  given  shall  be  sufficient,  which  form  contains  a  recital 
that  the  execution  of  the  instrument  was  the  free  and  voluntary  act  of 
the  party  executing  the  same.  It  does  not  provide  that  this  form  of 
acknowledgment  shall  be  exclusive,  and  we  are  satisfied  the  acknowledg- 


158  LAW  FOB  NOTARIES  PUBLIC. 

ment  which  was  taken  wherein  the  cTefendants  acknowledged  that  they 
signed  and  executed  the  mortgage,  without  any  further  statement  that 
they  volimtarily  did  the  sam^,  was  sufficient." 

Johnson  v.  Irwin,  16  Wash.  652,  48  Pac.  346,  March,  1897,  Ihin- 
bar,  J.:  "We  also  think  that  the  mortgage  was  sufficiently  acknowl- 
edged to  entitle  it  to  record."  The  opinion  does  not  show  how  it  was 
acknowledged,  but  the  syllabus  to  48  Pac.  346  says:  "Where  the 
acknowledgment  merely  recites  that  the  grantors  'duly  acknowledged 
the  execution  of  the  same.' " 

FOEM  xxxvin. 

Acknowledgment  of  Man  and  Wife. 

State  of  Washington, 
County  of  King, — ss. 

I,  John  Doe,  a  notary  public,  in  and  for  the  State  of  Washington, 
do  hereby  certify  that  on  this  10th  day  of  December,  1910,  person- 
ally appeared  before  me  William  Stiles,  and  Jane  Stiles,  his  wife,  to 
me  known  to  be  the  individuals  described  in  and  who  executed  the 
within  instrument,  and  acknowledged  that  they  signed  and  sealed  the 
same  as  their  free  and  voluntary  act  and  deed,  for  the  uses  and  pur- 
poses therein  mentioned. 

Given  under  my  hand  and  official  seal  this  10th  day  of  December, 
A.  D.  1910. 

[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington,  Kesiding  at  Seattle. 

FORM  XXXIX. 

Acknowledgment  of  Attorney  in  Fact. 

State  of  Washington, 
County  of  King, — ss. 

I,  John  Doe,  a  notary  public  in  and  for  the  state  of  Washington, 
residing  at  Seattle,  in  the  county  and  state  aforesaid,  duly  commis- 
sioned, sworn  and  qualified,  do  hereby  certify  that  on  this  10th  day  of 
December,  A.  D.  1910,  before  me  personally  appeared  William  Stiles, 
to  me  known  to  be  the  individual  described  in,  and  who  executed  the 
within  instrument  as  the  attorney  in  fact  of  Frank  Stiles,  and  acknowl- 
edged to  me  that  he  signed  and  sealed  the  same  as  his  free  and  volun- 
tary act  and  deed  as  attorney  in  fact  for  said  Frank  Stiles  in  the 
capacity  and  for  the  uses  and  purposes  therein  mentioned. 

Given  under  my  hand  and  official  seal  this  10th  day  of  December, 
A.  D.  1910. 

[Notary's  Seal]  JOHN  DOB, 

Notary  Public  in  and  for  the  State  of  Washington,  Residing  at  Seattle, 


ACKNOWLEDGMENTS.  159 

FORM  XL. 

Acknowledgment  as  Individual  and  as  Attorney  in  Fact. 

State  of  Washington, 
County  of  King, — ss. 

I,  John  Doe,  a  notary  public  in  and  for  the  state  of  Washington, 
residing  at  Seattle,  in  the  above-named  county  and  state,  duly  com- 
missioned, sworn  and  qualified,  do  hereby  certify  that  on  this  10th  day 
of  December,  A.  D.  1910,  before  me  personally  appeared  William  Stiles, 
to  me  known  to  be  the  individual  described  in,  and  who  executed  the 
within  instrument  for  himself  and  also  as  the  attorney  in  fact  for 
Frank  Stiles,  and  acknowledged  to  me  that  he  signed  and  sealed  the 
same  as  his  own  free  and  voluntary  act  and  deed  for  himself,  and  also 
as  his  free  and  voluntary  act  and  deed  as  attorney  in  fact  for  said 
Frank  Stiles,  in  the  capacity  and  for  the  uses  and  purposes  thereia 
mentioned. 

Given  under  my  hand  and  of&cial  seal  this  10th  day  of  December, 
A.  D.  1910. 

[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington,  Residing  at  Seattle. 

POEM  XLI. 

Acknowledgment  For  All  States.l 

United  States  of  America, 
State  of  Washington, 
County  of  King, — ss. 

I,  John  Doe,  a  notary  public,  in  and  for  the  state  of  Washington, 
duly  appointed,  commissioned  and  sworn,  as  a  notary  for  said  state, 
residing  therein  and  acting  as  such  officer,  do  hereby  certify  that  on 
the  10th  day  of  December,  in  the  year  1910,  there  appeared  before 
me  in  person,  William  Stiles,  known  to  me,  and  known  to  me  to  be 
the  identical  person  who  is  described  as  a  party  grantor  to  a  certain 
deed  bearing  date  December  9,  1910,  and  hereto  annexed,  and  who 
having  been  first  informed  of  the  contents  thereof,  signed  the  said 
deed  before  me  and  in  the  presence  of  the  two  subscribing  legal  wit- 
nesses and  acknowledged  that  he  signed,  sealed,  and  delivered  the  said 

1  This  form  of  acknowledg-  cautioned  to  use  the  latest  edi- 
ment,  while  containing  much  that  tion;  it  is  published  yearly. 
is  not  needed  in  many  states,  con-  There  are  so  many  different  re- 
tains all  that  is  needed  in  any  quirements  in  the  various  states 
state,  unless  the  state  has  a  for  the  acknowledgments  of  mar- 
statutory  form  which  must  be  ried  women  and  corporations  that 
followed.  If  there  is  a  statutory  forms  for  married  women  and 
form  it  may  be  found  in  Hubbell's  corporations  for  all  states  do  not 
Legal  Directory.    The  notary   is  appear  feasible. 


160  LAW  FOR  NOTARIES  PUBLIC. 

deed  before  me  and  in  the  presence  of  the  said  witnesses,  and  that  he 
executed  the  same  freely  and  voluntarily  for  the  uses,  purposts  and 
considerations  therein  expressed  and  desired  the  same  to  be  recorded 
as  such. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed  my 
official  seal  at  my  office  in  the  city  of  Seattle,  county  of  King  and 
state  of  Washington,  the  day  and  year  in  this  certificate  first  above 
written. 

[Seal  of  John  Doe]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington,  Eesiding  at  Seattle. 

My  Commission  expires  September  30,  1914. 

(1) , 

(2) , 

Witnesses. 

FORM  XLII. 

In  Bankruptcy. 

General  Letter  of  Attorney  in  Fact  When  Creditor  is  not  Eepresented 
by  Attorney  at  Law. 

In  the  District  Court  of  the  United  States  for  the  Eastern  District  of 

Washington. 

In  the  Matter  of  Richard  Roe, 


_  ,  In  Bankruptcy. 

Bankrupt.    '^  ^    '' 


To  William  Stiles,  Spokane,  Washington: 

I,  John  Jones,  of  Walla  WaUa,  in  the  county  of  Walla  Walla  and 
state  of  Washington,  do  hereby  authorize  you  or  any  one  of  you,  to 
attend  the  meeting  or  meetings  of  creditors  of  the  bankrupt  aforesaid 
at  a  court  of  bankruptcy,  wherever  advertised  or  directed  to  be  holden, 
on  the  day  and  at  the  hour  appointed  and  notified  by  said  court  in  said 
matter,  or  at  such  other  place  and  time  as  may  be  appointed  by  the 
court  for  holding  such  meeting  or  meetings,  or  at  which  such  meeting  or 
meetings,  or  any  adjournment  or  adjournments  thereof  may  be  held, 
and  then  and  there  from  time  to  time,  and  as  often  as  there  may  be 
occasion,  for  me  and  in  my  name  to  vote  for  or  against  any  proposal 
or  resolution  that  may  be  then  submitted  under  the  acts  of  Congress 
relating  to  bankruptcy;  and  in  the  choice  of  trustee  or  trustees  of  the 
estate  of  the  said  bankrupt,  and  for  me  to  assent  to  such  appointment 
of  trustee;  and  with  like  powers  to  attend  and  vote  at  any  other  meeting 
or  meetings  of  creditors,  or  sitting  or  sittings  of  the  court,  which  may 
be  held  therein  for  any  of  the  purposes  aforesaid;  also  to  accept  any 
composition  proposed  by  said  bankrupt  in  satisfaction  of  his  debts,  and 
to  receive  payment  of  dividends  and  of  money  due  me  under  any  com- 
position, and  for  any  other  purpose  in  my  interest  whatsoever,  with 
full  power  of  substitution. 


ACKNOWLEDGMENTS.  161 

In  witness  whereof  I  have  hereunto  signed  my  name  and  affixed  mj 
seal  the  10th  day  of  December,  A.  D.  1910. 

JOHN  JONES.     [Seal] 

Signed,  sealed  and  delivered  in  presence  of 
FRANK  JONES. 
JAMES  SMITH. 

Acknowledged  before  me  this  10th  day  of  December,  A.  D.  1910. 
[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington  residing  at  Seattle. 

FORM  XLin. 

Bargain  and  Sale  Deed. 
Statutory  Form. 

The  grantor,  William  Stiles,  a  bachelor,  of  Seattle,  in  the  county  of 
King  and  state  of  Washington,  for  and  in  consideration  of  one  thou- 
sand dollars,  in  hand  paid,  bargains,  sells  and  conveys  to  John  Jones 
(husband  of  Mary  Jones),  of  Renton,  in  the  county  of  King  and  state 
of  Washington,  the  following  described  real  estate:  Lot  15,  in  block 
40,  Seattle  tide  lands,  according  to  map  of  said  tide  lands  on  page  40, 
volume  2,  filed  in  office  of  Board  of  State  Land  Commissioners  at  Olym- 
pia,  Washington,  March  1,  1895,  situated  in  the  county  of  King,  state 
of  Washington. 

Dated  this  10th  day  of  December,  1910. 

WILLIAM  STILES. 
State  of  Washington, 
County  of  King, — ss. 

I,  John  Doe,  a  notary  public,  do  hereby  certify  that  on  this  10th 
day  of  December,  1910,  personally  appeared  before  me  William  Stiles, 
to  me  known  to  be  the  individual  described  in  and  who  executed  the 
within  instrument,  and  acknowledged  that  he  signed  and  sealed  the 
same  as  his  free  and  voluntary  act  and  deed,  for  the  uses  and  purposes 
therein  mentioned. 

Given  under  my  hand  and  official  seal  this  10th  day  of  December, 
A.  D.  1910. 

[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in    and    for    the  State  of  Washington,    Residing    at 
Seattle. 

FORM  XLTV. 

Quitclaim  Deedi 

Statutory  Form. 

The  grantor,  William  Stiles,  bachelor,  of  Seattle,  in  the  county  of 
King  and  state  of  Washington,  for  the  consideration  of  one  thousand 
dollars  in  hand  paid,  conveys  and  quitclaims  to  Jane  Roe,  a  spinster, 
U 


162  LAW  FOR  NOTARIES  PUBLIC. 

of  the  county  of  King,  in  the  state  of  "Washington,  all  interest  in  the 
following  described  real  estate:  Southeast  quarter  (SE.  y^,)  of  section 
four  (4),  township  twenty  (20)  north,  of  range  thirteen  (13),  E.  W. 
M.,  situated  in  the  county  of  Spokane,  state  of  Washington. 
Dated  this  10th  day  of  December,  1910. 

WILLIAM    STILES 

[The  acknowledgment  would  follow  the  form  after  the  bargain  and 
sale  deed.] 

FORM  XLV. 
Warranty  Deed. 
Statutory  Form. 

The  grantors,  William  Stiles  and  Jane  Stiles,  husband  and  wife 
now  and  at  the  time  of  acquiring  title  to  the  hereinafter  described 
premises,  of  Seattle,  in  the  county  of  King  and  state  of  Washington, 
for  and  in  consideration  of  one  thousand  dollars  in  hand  paid,  con- 
veys and  warrants  to  John  Jones  (the  husband  of  Mary  Jones),  the 
grantee,  the  following  described  real  estate:  (describe  land  here) 
situated  in  the  county  of  Chehalis,  state  of  Washington. 

Dated  December  10,  1910. 

WILLIAM  STILES. 
JANE  STILES. 

[The  acknowledgment  would  follow  the  form  after  the  bargain  and 
sale  deed.] 

FORM  XL VI. 
Community  Interest  Deed. 

This  indenture,  made  this  10th  day  of  December,  1910,  between 
Richard  Roe,  husband  of  Jane  Roe,  of  the  county  of  King,  state  of 
Washington,  the  party  of  the  first  part,  and  Jane  Roe,  wife  of  Rich- 
ard Roe,  of  the  same  place,  the  party  of  the  second  part, 

Witnesseth;  That  the  said  party  of  the  first  part,  for  and  in  con- 
sideration of  the  love  and  affection  which  the  said  party  of  the  first 
part  has  and  bears  unto  the  said  party  of  the  second  part,  as  also 
for  the  better  maintenance,  support,  protection  and  livelihood  of  the 
said  party  of  the  second  part,  does  by  these  presents  give,  grant, 
alien  and  confirm  unto  the  said  party  of  the  second  part,  and  to  her 
heirs  and  assigns  forever,  all  those  certain  lots,  pieces  or  parcels  of 
land  situate,  lying  and  being  in  the  county  of  King,  state  of  Wash- 
ington, bounded  and  particularly  described  as  follows,  to  wit:  (De- 
scribe land  here.)  Together  with  all  and  singular  the  tenements, 
hereditaments  and  appurtenances  thereunto  belonging,  or  in  any  wise 
appertaining,  and  the  reversion  and  reversions,  and  remainder  and 
remainders,  rents,  issues  and  profits  thereof. 

To  have  and  to  hold,  all  and  singular  the  said  premises,  together 
with  the  appurtenances,  unto  the  said  party  of  the  second  part,  her 
heirs  and  assigns  forever. 


ACKNOWLEDGMENTS.  163 

In  witness  whereof,  the  said  party  of  the  first  part  has  hereunto 
set  his  hand  and  seal  the  day  and  year  first  above  written. 

RICHARD  ROE.     [Seal] 

[The  acknowledgment  would  follow  the  form  after  the  bargain  and 
sale  deed.] 

FORM  XLVII. 

Mortgage  for  Real  Estate. 

Statutory, 

The  mortgagor,  William  Stiles  (husband  of  Jane  Stiles),  of  Seattle, 
in  the  county  of  King  and  state  of  Washington,  mortgages  to  John 
Jones,  a  bachelor,  of  the  same  place,  to  secure  the  payment  of  one 
thousand  dollars,  lawful  money  of  the  United  States,  together  with 
interest  thereon  at  the  rate  of  six  per  cent  per  annum  until  paid, 
according  to  the  terms  and  conditions  of  two  certain  promissory  notes 
bearing  date  December  10,  1910,  made  by  William  Stiles,  payable, 
the  first  one  year  from  date  hereof  and  the  second  two  years  from 
date  hereof,  to  the  order  of  John  Jones,  the  following  described  real 
estate:  (describe  land  here)  situated  in  the  county  of  King,  state 
of  Washington. 

Dated  this  10th  day  of  December,  1910. 

WILLIAM  STILES. 

Signed,  sealed  and  delivered  in  presence  of 
FRANK  JOHNSON. 
HENRY  JAMES. 

[The  acknowledgment  would  follow  the  form  after  the  bargain  and 
sale  deed.] 

FORM  XLVm. 

Chattel  Mortgage. 

Know  All  Men  by  These  Presents,  That  I,  William  Stiles,  of  Se- 
attle, Washington,  party  of  the  first  part,  for  and  in  consideration 
of  five  hundred  dollars  paid  by  John  Jones,  of  Renton,  Washington, 
party  of  the  second  part,  the  receipt  whereof  is  hereby  acknowl- 
edged, do  hereby  give,  grant,  bargain,  sell,  convey  and  mortgage  unto 
John  Jones,  party  of  the  second  part,  all  that  personal  property  now 
being,  located  and  kept  at  No.  147  Second  avenue,  in  the  city  of 
Seattle,  county  of  King  and  state  of  Washington,  and  described  as 
follows:  (here  describe  each  article  which  the  chattel  mortgage  is 
to  cover) :  Being  all  the  property  located  at  that  place  and  owned 
by  the  party  of  the  first  part.  To  have  and  to  hold  the  said  granted 
and  bargained  goods  unto  the  said  John  Jones,  his  heirs,  executors, 
administrators  or  assigns,  to  his  and  their  only  proper  use,  benefit 
and  behoof  forever.  And  he  hereby  covenants  to  defeno  the  title 
to  the   granted  premises  against   the   lawful   claims   of   all  persons. 


164  LAW  FOR  NOTARIES  PUBLIC. 

Provided,  nevertheless,  and  these  presents  are  upon  the  express  con- 
dition, that  if  William  Stiles  or  his  heirs,  executors,  administrators 
or  assigns  shall  pay  unto  the  grantee,  or  his  heirs,  executors,  admin- 
istrators or  assigns,  the  sum  of  five  hundred  dollars,  according  to 
the  tenor  and  terms  of  one  certain  promissory  note  made  by  the 
grantor,  for  five  hundred  dollars,  dated  Seattle,  Washington,  Novem- 
ber 28,  1910,  and  payable  at  the  Georgetown  National  Bank  on  the 
28th  day  of  November,  1911,  with  interest  at  seven  (7)  per  cent  per 
annum,  and  shall  perform  and  observe  all  covenants  and  conditions 
hereinafter  contained,  then  this  mortgage  and  the  notes  hereby  se- 
cured shall  be  void,  otherwise  to  remain  in  full  force  and  effect. 

It  is  agreed  that  time  shall  be  material,  and  the  essence  of  this  mort- 
gage, and  if  default  be  made  in  the  payment  of  the  notes  hereby  se- 
cured and  the  interest  thereon,  or  any  part  thereof,  when  due,  then 
said  notes,  except  interest  thereon  for  unexpired  time,  shall,  at  the  op- 
tion of  the  owner  thereof,  become  at  once  due  and  payable  without  fur- 
ther notice,  and  suit  in  foreclosure  of  this  mortgage  may  be  commenced 
at  once;  and  in  the  judgment  and  decree  of  such  foreclosure,  a 
reasonable  attorney's  fee  shall  be  included  in  the  judgment  and  in 
case  such  foreclosure  suit  is  settled  before  judgment  is  recorded 
therein,  such  attorney's  fee  shall  nevertheless  be  paid;  and  if  the  debt 
and  interest,  or  any  installment  thereof,  secured  by  this  mortgage  are 
not  paid  when  due,  such  sums  so  overdue  shall  bear  interest  at  the 
rate  of  seven  (7)  per  cent  per  annum  from  maturity  until  paid. 

In  witness  whereof,  said  party  of  the  first  part  has  hereunto  set 
his  hand  and  seal  this  the  10th  day  of  December,  1910. 

WILLIAM   STILES.     [Seal] 

Signed,  sealed  and  delivered  in  presence  of 
SAMUEL  STILES. 
FRANK  MILES. 

State  of  Washington, 
County  of  King, — ss. 

I,  John  Doe,  a  notary  public,  do  hereby  certify  that  on  this  10th 
day  of  December,  1910,  personally  appeared  before  me  William  Stiles, 
to  me  known  to  be  the  individual  described  in  and  who  executed  the 
within  instrument,  and  acknowledged  that  he  signed  and  sealed  the 
same  as  his  free  and  voluntary  act  and  deed  for  the  uses  and  pur- 
poses therein  mentioned. 

Given  under  my  hand  and  official  seal  this  10th  day  of  December, 
A.  D.  1910. 

[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington,  Residing  at  Seattle. 


ACKNOWLEDGMENTS.  165 

State  of  Washington, 
County  of  King, — ss. 

William  Stiles,  the  mortgagor  in  the  foregoing  mortgage  named, 
being  first  duly  sworn,  on  his  oath  deposes  and  says  that  the  aforesaid 
mortgage  is  made  in  good  faith,  and  without  any  desire  to  hinder, 
delay  or  defraud  any  creditor  or  creditors. 

WILLIAM  STILES. 

Sworn  and  subscribed  to  before  me  this  10th  day  of  December, 
1910. 

[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington,  Residing  at  Seattle. 

The  notary  should  follow  the  examples  given  below  in 
describing  the  grantors  and  grantees  in  deeds.  The  pur- 
pose of  such  descriptions  is  to  assist  those  making  title 
searches,  many  years,  possibly,  after  all  the  parties  to  the 
deed  are  dead.  Attorneys  who  have  made  a  special  study 
of  the  question  are  now  writing  them  in  their  deeds: 

FORM  XLIX. 

"I,  Richard  L.  Roe,  husband  of  Jane  J.  Roe." 

"I,  Jane  J.  Roe,  wife  of  Richard  L.  Roe." 

"I,  Richard  L.  Roe,  widower,  husband  of  the  late  Mary 
Roe  at  the  time  I  acquired  the  hereinafter  described  prem- 
ises." 

"I,  Jane  J.  Roe,  widow  of  the  late  Richard  L.  Roe,  who 
died  January,  1905." 

"To  Richard  Roe  (husband  of  Jane  Roe),"  when  he  is  the 
grantee. 

"To  Jane  Roe  (wife  of  Richard  Roe),"  when  she  is  the 
grantee. 

"I,  John  Doe,  widower  now  and  at  the  time  I  acquired 
the  hereinafter  described  premises  and  during  all  the  time 
intervening." 

"I,  Richard  L.  Roe,  bachelor." 

**I,  Jane  J.  Roe,  spinster." 

"Spinster"  describes  a  woman  who  has  never  been  mar- 
ried. "Bachelor"  describes  a  man  who  has  never  been  mar- 
ried.    The  word  "unmarried"  should  not  be  used;  it  may 


166  ~  LAW  FOR  NOTARIES  PUBLIC. 

mean  spinster,  widow,  divorcee,  bachelor,  widower  or  a  man 
who  has  been  divorced.  It  would  be  a  good  rule  to  show  the 
approximate  date  of  the  marriage  of  the  grantors  in  every 
deed. 

§  81.  Certificate  of  Acknowledgment:  By  Whom  Writ- 
ten: Time  of  Writing:  Place. — The  certificate  should  be 
made  out  by  the  notary,  preferably  at  the  time  the  signa- 
ture is  acknowledged,  and'  should  be  written  on  or  attached 
to  the  instrument  acknowledged,  but  there  is  no  particular 
place  for  it.  It  is  generally  placed  just  after  the  signature 
of  the  person  acknowledging. 

§  82.  Certificate  of  Acknowledgment:  Venue:  Date: 
Signature  of  Officer:  Official  Designation:  Seal. — The  venue 
should  be  as  follows: 

FORM  L. 

State  of  "Washington, 
County  of  King, — ss. 

if  the  notary  resides  and  is  then  in  King  county ;  if  he  is  in 
some  other  county  temporarily,  for  instance,  Spokane,  it 
would  be: 

FORM  LI. 

State  of  Washington, 
County  of  Spokane, — ss. 

no  matter  where  he  resides.  The  reason  is  that  a  notary  in 
Washington  is  a  state  officer. 

The  date  should  be  carefully  filled  in,  as  that  is  a  very 
important  fact  in  a  certificate.  The  certificate  itself  must 
show  whether  the  notary  was  at  that  time  qualified  to  take 
acknowledgments.  Just  after  the  certificate  the  notary 
should  sign  his  name  in  the  same  manner  it  is  on  his  seal. 
If  his  seal  says  John  B.  Smith,  he  should  sign 

FORM  LII. 

John  B.  Smith 

and  not  J.  B.  Smith.  After  his  name  he  should  add  "notary 
public  in    and  for    the    state  of    Washington  residing  in 


ACKNOWLEDGMENTS.  167 

"[a-]  Just  at  the  end  of  the  certificate  an  impres- 
sion of  his  seal  should  be  placed.  If  this  is  not  done  the 
certificate  of  acknowledgment  will  be  of  no  validity,  [b] 

[a]  Sullivan  v.  Treen,  13  Wash.  261,  43  Pac.  38,  December,  1895, 
Hoyt,  C.  J.:  "The  statute  of  1893  (Laws  1893,  p.  34,  §  5)  authorized 
an  amendment  of  notices  of  lien  when  the  interest  of  third  parties 
would  not  be  affected  thereby,  and  under  this  provision  the  court 
allowed  this  lien  notice  to  be  amended  by  the  addition  of  the  place 
of  residence  of  the  notary." 

[a]  Griffin  v.  Catlin  et  al.,  25  Wash.  474,  87  Am.  St.  Eep.  782,  65 
Pac.  755,  July,  1901,  Per  Curiam:  "There  are  but  two  points  made  in 
the  argument  for  appellants:  That  the  mortgage  was  not  acknowledged 
as  required  by  law,  and  was  invalid;  and  that  the  residence  of  the 
notary  was  not  added  to  the  certificate — it  was  regular  in  all  other  re- 
spects. The  acknowledgment  conforms  to  the  form  specified  in  section 
4533,  Ballinger's  Code  [Rem.  &  Bal.  Code,  §  8761],  which  section  de- 
clares: 'A  certificate  of  acknowledgment,  substantially  in  the  follow- 
ing form  shall  be  sufficient.'  There  are  some  cases,  as  Gates  r. 
Brown,  1  Wash.  470,  25  Pac.  914,  and  Stetson-Post  Mill  Co.  v.  Mc- 
Donald, 5  Wash.  496,  32  Pac.  108,  cited  by  appellants  to  sustain  their 
contention,  but  in  those  cases  the  official  seal  was  omitted,  which  was  a 
material  defect.  The  omission  of  the  notary's  place  of  residence  is 
not  a  material  defect." 

[b]  "It  shall  not  be  necessary  for  a  notary  public,  in  certifying  an 
oath  to  be  used  in  any  of  the  courts  of  this  state,  to  append  an  im- 
pression of  his  official  seal,  but  in  all  other  cases  when  the  notary 
public  shall  sign  any  instrument  officially,  he  shall,  in  addition  to  his 
name  and  the  words  'Notary  Public,'  add  his  place  of  residence  and 
affix  his  official  seal":  Laws  1890,  p.  474,  §  5;  1  H.  C,  §  333;  Bal. 
Code,  §  249;  2  Rem.  &  Bal.  Code,  §  8299. 

§  83.  Certificate  of  Authenticity  and  Conformity. — 
After  the  acknowledgment  has  been  filled  out  as  set  forth 
in  the  foregoing  sections,  the  instrument,  if  it  is  to  be  used 
in  some  sister  state  or  foreign  country,  should  be  taken  to 
the  county  clerk  or  secretary  of  state  for  a  certificate  of 
authenticity  to  be  added.  This  matter  has  been  fully  con- 
sidered before  at  page  57,  section  26  and  following. 

§  84.  Amendment  of  Certificate. — If  a  deed  or  other  in- 
stniment  is  acknowledged  in  legal  form  before  a  notary, 
and  he  makes  an  incorrect  certificate  or  no  certificate  at  all, 


168 


LAW  FOB  NOTARIES  PUBLIC. 


it  has  been  held,  in  some  jurisdictions,  that  he  may,  during 
his  continuance  in  office,^  correct  the  certificate  to  conform 
to  the  facts  or  attach  a  certificate  if  he  failed  so  to  do  at 
the  time  the  acknowledgment  was  taken ;  ^  but  by  the  weight 
of  authority  the  notary  should  have  the  party  reappear  be- 
fore him  and  take  a  new  acknowledgment.^ 


§  85.  Notary's  Liability  for  False  or  Defective  Certifi- 
cate: Damages. — If,  through  gross  negligence  or  from 
malice,  a  notary  makes  a  false  certificate  of  acknowledg- 
ment, he  and  his  sureties  will  be  liable  on  his  bond  for  all 
damages  resulting  directly  from  his  wrongdoing  and  in  no 
way  brought  about  by  the  action  of  the  party  injured.*  In 
a  case  in  California '^  the  notary  failed  to  show  in  his  cer- 
tificate that  the  grantor  was  personally  known  to  him,  or 
that  he  was  identified  in  a  sufficient  manner,  and  the  court 
held  that  he  was  guilty  of  gross  and  culpable  negligence  and 
was  liable  on  his  official  bond  to  the  party  injured.  In  a 
Michigan  case®  the  notary  certified  that  a  certain  person 


1  1  Am.  &  Eng.  Ency.  of  Law 
&  Prac,  p.  911;  McKellar  v. 
Peck,  39  Tex.  381;  Carlisle  v. 
Carlisle,  78  Ala,  542;  Cook  v. 
Pitman,  144  N.  C.  530,  119  Am. 
St.  Eep.  985,  57  S.  E.  219. 

2  1  Am.  &  Eng.  Ency.  of  Law 
&  Prac,  p.  911;  Jordan  v.  Corey, 
2  Ind.  385,  52  Am.  Dec.  516; 
Westhafer  v.  Patterson,  120  Ind. 
459,  16  Am.  St.  Rep.  330,  22  N.  E. 
414;  Hanson  v.  Cochran,  9  Houst. 
(Del.)  184,  31  Atl.  880. 

«  1  Am.  &  Eng.  Ency.  of  Law 
&  Prac,  p.  914;  Cahall  v.  Citi- 
zens' Mut.  Bldg.  Assn.,  61  Ala. 
232;  Sullivan  v.  Chambers,  18  R. 
L  799,  31  Atl.  167;  Griffith  v. 
Ventress,  91  Ala.  366,  24  Am.  St. 
Rep.  918,  9  South,  312,  11  L.  R. 
A.  193;  Merritt  v.  Yates,  71  El. 
636,  23  Am,  Rep.  128;  Enter- 
prise Transit  Co.  v,  Sheedy,  103 
Pa.  492,  49  Am.  Rep.  130;  Stone 


V.  Sledge,  87  Tex.  49,  47  Am.  St. 
Rep.  65,  26  S,  W.  1068. 

4  State  V,  Meyer,  2  Mo,  App. 
413;  People  v.  Bartels,  138  111. 
322,  27  N.  E,  1091;  Bartels  v. 
People,  152  111.  557,  38  N.  E. 
898;  Stevenson  v.  Brasher,  90 
Ky.  23,  13  S.  W.  242;  1  Am.  & 
Eng.  Ency,  of  Law,  2d  ed,,  p, 
555,  In  the  case  of  Emmerling 
V.  Graham,  14  La,  Ann.  389,  it 
was  held  that  no  action  would 
lie  against  the  notary  as  the 
holder  allowed  the  statute  of 
limitations  to  run:  Heidt  ▼. 
Minor,  113  Cal.  385,  45  Pac  700; 
State  V,  Ryland,  163  Mo,  280,  63 
S,  W,  819;  Crosthwait  v,  Pitts, 
139  Ala.   421,  36   South.  83. 

5  Fogarty  v.  Finlay,  10  CaL 
239,  70  Am,  Dec.  714. 

«  People  V.  Colby,  39  Mich. 
456;  People  v.  Cole,  139  Mich. 
312,  102  N.  W.  856. 


ACKNOWLEDGMENTS.  169 

appeared  before  him  personally  and  acknowledged  that  he 
executed  a  certain  mortgage.  As  a  matter  of  fact,  the  per- 
son did  not  appear  and  his  name  was  not  signed  to  the 
instrument;  the  court  held  that  the  notary  was  guilty  of 
malfeasance  and  liable  on  his  official  bond.  To  recover  dam- 
ages, however,  for  a  false  certificate  of  acknowledgment, 
the  party  claiming  them  must  prove  a  clear  and  intentional 
dereliction  of  duty.'*  If  a  notary  certifies  that  he  personally 
knew  the  one  making  the  acknowledgment,  when  as  a  mat- 
ter of  fact  he  did  not,  he  will  be  liable  in  an  action  for  dam- 
ages.    It  is  his  duty  to  know.^ 

The  damages  in  cases  of  the  negligence  of  the  notary  in 
taking  and  certifying  the  acknowledgment  of  a  mortgage 
is  the  amount  of  the  debt  and  interest  intended  to  be  secured 
by  the  mortgage.® 

§  86.    Notary's  Liability  for  False  Certificate:  Criminal. 

The  matter  of  the  criminal  liability  of  a  notary  public  has 
been  considered  before,  on  page  96,  section  35. 

§  87.  Miscellaneous  Statutes  of  Washington:  Husband 
'and  Wife:  Power  of  Attorney:  Acknowledgment  of  In- 
dians: Recording  Plat:  Telegraphing  Instrument  for  Rec- 
ord: Sale  of  Homestead:  Registered  Land. — The  husband 
has  control  of  all  community  property,  but  the  wife  must 
join  in  the  execution  and  acknowledgment,  [a]  The  hus- 
band and  wife  may  make  an  agreement  concerning  the  status 
or  disposition  of  community  property  to  take  effect  upon  the 
death  of  either,  but  the  agreement  must  be  acknowledged, 
[b]  The  husband  or  wife  may  convey  to  the  other;  con- 
veyance must  be  acknowledged,  [c]  Either  husband  or  wife 
may  make  a  power  of  attorney  for  conveyance  of  his  sepa- 
rate real  or  personal  estate;  conveyance  must  be  acknowl- 

4  Commonwealth  v.  Haines,  97  531,  7  N.  W.  157;  State  v.  Meyer, 

Pa.  228,  39  Am.  Eep.  805;  Hen-  2     Mo.     App.     413;     Hattan     v. 

derson  v.  Smith,  26  W.  Va.  829,  Holmes,  97  Cal.  208,  31  Pac.  1131; 

53    Am.    Eep.    139;     Browne    v.  Bartels  v.  People,    45    HI.    App. 

Dolan,  68    Iowa,    645,    27  N.  W.  306. 

795.  6  Fogarty   v.    Finlay,    10    CaL 

6  Cameron  v.  Culkins,  44  Mich.  239,  70  Am.  Dec.  714. 


170  LAW  FOR  NOTARIES  PUBLIC. 

edged,  [d]  [e]  Husband  or  wife  may  make  power  of  attor- 
ney to  the  other  authorizing  sale  or  other  disposition  of  his 
or  her  community    interest;  same    must  be    acknowledged. 

Since  1899  a  notary  public  may  take  the  acknowledgment 
of  an  Indian  desiring  to  sell  his  real  property,  [g]  When- 
ever a  person,  to  comply  with  law,  shall  offer  a  "plat" 
for  record  at  the  auditor's  office  of  the  county  in  which  the 
land  lies,  he  must  first  have  the  same  acknowledged,  [h] 
Any  power  of  attorney  duly  proved  or  acknowledged  and 
certified  so  as  to  be  entitled  to  record  may  be  sent  by  tele- 
graph for  record,  [i] 

In  conveying  or  encumbering  the  homestead  of  a  married 
person,  both  husband  and  wife  must  execute  and  acknowl- 
edge the  instrument,  [j] 

A  power  of  attorney  dealing  in  any  way  with  registered 
land  must  be  acknowledged,  [k] 

[a]  "The  husband  has  the  management  and  control  of  the  com- 
munity real  property,  but  he  shall  not  sell,  convey,  or  encumber  the 
community  real  estate,  unless  the  wife  join  with  him  in  executing  the 
deed  or  other  instrument  of  conveyance  by  which  the  real  estate  is 
sold,  conveyed  or  encumbered,  and  such  deed  or  other  instrument  of 
conveyance  must  be  acknowledged  by  him  and  his  wife  .  .  .  .":  Code 
1881,  §  2410;  1  H.  C,  §  1400;  Bal.  Code,  §  4491;  2  Eem.  &  Bal.  Code, 
§  5918. 

[b]  "Nothing  contained  in  any  of  the  provisions  of  this  chapter, 
or  in  any  law  of  this  state,  shall  prevent  the  husband  and  wife  from 
jointly  entering  into  any  agreement  concerning  the  status  or  disposi- 
tion of  the  whole  or  any  portion  of  the  community  property,  then 
owned  by  them  or  afterwards  to  be  acquired,  to  take  effect  upon  the 
death  of  either.  But  such  agreement  may  be  made  at  any  time  by 
the  husband  and  wife  by  the  execution  of  an  instrument  in  writing 
under  their  hands  and  seals,  and  to  be  witnessed,  acknowledged,  and 
certified  in  the  same  manner  as  deeds  to  real  estate  are  required  to 
be,  under  the  laws  of  the  state,  and  the  same  may  at  any  time  there- 
after be  altered  or  amended  in  the  same  manner  ....":  Code  1881, 
S  2416;  1  H.  C,  §  1401;  Bal.  Code,  §  4492;  2  Eem.  &  Bal.  Code,  §  5919. 

[c]  "A  husband  may  give,  grant,  sell,  or  convey  directly  to  his 
wife,  and  a  wife  may  give,  grant,  sell,  or  convey  directly  to  her  hus- 
band his  or  her  community  right,  title,  interest,  or  estate  in  all  or 
any  portion  of  their  community  real  property.  And  every  deed  made 
from  husband  to  wife,  or  from  wife   to   husband,  shall  operate   to 


ACKNOWLEDGMENTS.  171 

divest  the  real  estate  therein  recited  from  any  or  every  claim  or 
demand  as  community  property,  and  shall  vest  the  same  in  the  gran- 
tee as  separate  property.  The  grantor  in  all  such  deeds,  or  the  party 
releasing  such  community  interests  or  estate,  shall  sign,  seal,  execute 
and  acknowledge  the  deed,  as  a  single  person,  without  the  joinder 
therein  of  the  married  party  therein  named  as  grantee  ....":  Laws 
1888,  p.  52,  §  1;  1  H.  C,  §  1443;  Bal.  Code,  §  4539;  2  Eem,  &  Bal. 
Code,  §  8766. 

[d]  "A  husband  or  wife  may  make  and  execute  powers  of  attorney 
for  the  sale,  conveyance,  transfer,  or  encumbrance  of  his  or  her  sepa- 
rate estate,  both  real  and  personal,  without  the  other  spouse  joining 
in  the  execution  thereof.  Such  power  of  attorney  shall  be  acknowl- 
edged and  certified  in  the  manner  provided  by  law  for  the  conveyance 
of  real  estate.  Nor  shall  anything  herein  contained  be  so  construed 
as  to  prevent  either  husband  or  wife  from  appointing  the  other  his 
or  her  attorney  in  fact  for  the  purposes  provided  in  this  section": 
Laws  1888,  p.  53,  §  2;  1  H.  C,  §  1444;  Bal.  Code,  §  4540;  2  Eem.  & 
Bal.  Code,  §  8767. 

[e]  "Any  conveyance,  transfer,  deed,  lease,  or  other  encumbrances 
executed  under  and  by  virtue  of  such  power  of  attorney  [2  Rem.  & 
Bal.  Code,  §  8767]  shall  be  executed,  acknowledged,  and  certified  in 
the  same  manner  as  if  the  person  making  such  power  of  attorney  had 
been  unmarried":  Laws  1888,  p.  53,  §  3;  1  H.  C,  §  1445;  Bal.  Code, 
§  4541;  2  Eem.  &  Bal.  Code,  §  8768. 

A  certificate  of  acknowledgment  may  be  made  by  a  husband  as 
attorney  in  fact  for  his  wife:  Richmond  v.  Voorhees,  10  Wash.  320, 
December,  1894,  opinion  by  Judge  Hoyt. 

[f]  "A  husband  may  make  and  execute  a  letter  of  attorney  to  the 
wife,  or  the  wife  may  make  and  execute  a  letter  of  attorney  to  the 
husband,  authorizing  the  sale  or  other  disposition  of  his  or  her  com- 
munity interest  or  estate  in  the  community  property,  and  as  such 
attorney  in  fact  to  sign  the  name  of  such  husband  or  wife  to  any 
deed,  conveyance,  mortgage,  lease,  or  other  encumbrance,  or  to  any 
instrument  necessary  to  be  executed  by  which  the  property  conveyed 
or  transferred  shall  be  released  from  any  claim  as  community  prop- 
erty. And  either  said  husband  or  said  wife  may  make  and  execute 
a  letter  of  attorney  to  any  third  person  to  join  with  the  other  in  the 
conveyance  of  any  interest  either  in  separate  real  estate  of  either, 
or  in  the  community  estate  held  by  such  husband  or  wife  in  any 
real  property.  And  both  husband  and  wife  owning  community  prop- 
erty may  jointly  execute  a  power  of  attorney  to  a  third  person  au- 
thorizing the  sale,  encumbrance,  or  other  disposition  of  community 
real  property,  and  so  execute  the  necessary  conveyance  or  transfer 
of  said  real  estate":  Laws  1888,  p.  53,  §  4;  1  H,  C,  §  1446;  Bal.  Code, 
5  4542;  2  Eem.  &  Bal.  Code,  §  8769. 


172  LAW  FOB  NOTARIES  PUBLIC. 

[g]  "Any  Indian  who  owns  within  thig  state  any  land  or  real 
estate  allotted  to  him  by  the  government  of  the  United  States  may 
with  the  consent  of  Congress,  either  special  or  general,  sell  or  convey  by 
deed  made,  executed  and  acknowledged  before  any  officer  authorized 
to  take  acknowledgments  to  deeds  within  this  state,  any  stone,  min- 
eral, petroleum  or  timber  contained  on  said  land  ot  the  fee  thereof 
and  such  conveyance  shall  have  the  same  effect  as  a  deed  of  any 
other  person  or  persons  within  this  state;  it  being  the  intention  of 
this  section  to  remove  from  Indians  residing  in  this  state  all  existing 
disabilities  relating  to  alienation  of  their  real  estate":  Laws  1899, 
p.  155,  5  1;  2  Kem.  &  Bal.  Code,  §  8780. 

[h]  "Every  person  whose  duty  it  may  be  to  comply  with  the  fore- 
going regulations  shall  at  or  before  the  time  of  offering  such  plat 
for  record,  acknowledge  the  same  before  the  auditor  of  the  proper 
county,  or  any  other  officer  who  is  authorized  by  law  to  take  acknowl- 
edgments of  deeds,  a  certificate  of  which  acknowledgment  shall  be 
indorsed  on  or  annexed  to  such  plat  and  recorded  therewith  ....": 
Laws  1863,  p.  431,  §  4;  Code  1881,  §  2331;  1  H.  C,  §  745;  Laws  1893, 
p.  419,  §  1;  BaL  Code,  §  1262;  2  Rem.  &  Bal.  Code,  §  7833. 

[i]  "Any  power  of  attorney,  or  other  instrument  in  writing,  duly 
proved  or  acknowledged,  and  certified  so  as  to  be  entitled  to  record, 
may,  together  with  the  certificate  of  its  proof  or  acknowledgment, 
be  sent  by  telegraph,  and  telegraphic  copy,  or  duplicate  thereof,  shall, 
prima  facie,  have  the  same  force  and  effect,  in  all  respects,  and  may 
be  admitted  to  record  and  recorded  in  the  same  manner  and  with 
like  effect,  as  the  original":  Laws  1866,  p.  74,  §  13;  Code  1881,  §  2354; 
1  H.  C,  §  1554;  Bal.  Code,  §  4364;  2  Eem.  &  Bal.  Code,  §  9309. 

[j]  "The  homestead  of  a  married  person  cannot  be  conveyed  or 
encumbered  unless  the  instrument  by  which  it  is  conveyed  or  encum- 
bered is  executed  and  acknowledged  by  both  husband  and  wife": 
Laws  1895,  p.  110,  §  6;  Bal.  Code,  §  5219;  1  Eem.  &  Bal.  Code,  §  534. 

"The  homestead  consists  of  the  dwelling-house,  in  which  the  claim- 
ant resides,  and  the  land  on  which  the  same  is  situated,  selected 
as  in  this  chapter  provided":  Rem.  &  Bal.  Code,  c.  3;  Laws  1895, 
p.  109,  §  1;  Bal.  Code,  §  5214;  Rem.  &  Bal.  Code,  §  528. 

[k]  "Any  person  may  by  attorney  convey  or  otherwise  deal  with 
registered  land,  but  the  letters  or  power  of  attorney  shall  be  acknowl- 
edged and  filed  with  the  registrar  of  titles,  and  registered.  Any 
instrument  revoking  such  letters,  or  power  of  attorney,  shall  be  ac- 
knowledged in  like  manner":  Laws  1907,  p.  718,  §  54;  2  Rem,  &  Bal. 
Code,  §  8862. 

§  88.  Validating  Acts. — From  time  to  time  laws  are 
passed  to  validate  deeds  which  have  been  placed  on  record, 


ACKNOWLEDGMENTS.  173 

but  which  are  defective  in  the  want  of  a  seal,  or  in  having 
been  taken  by  a  notary  after  his  term  of  office  has  expired, 
or  for  other  reasons,  [a]  The  following  is  a  list  of  validat- 
ing statutes  in  this  state:  Laws  of  1866,  page  93;  Laws  of 
1871,  page  83 ;  Laws  of  1873,  pages  466,  477,  481 ;  Laws  of 
1875,  page  103;  Laws  of  1877,  page  313;  Laws  of  1879, 
pages  110,  157;  Laws  of  1888,  page  184;  Laws  of  1889,  page 
476 ;  Laws  of  1893,  page  283 ;  Laws  of  1903,  page  14. 

[a]  "Special  Legislation. — The  legislature  is  prohibited  from  enact* 
ing  a,nj  private  or  special  laws  in  the  following  cases: — 

"9.  Prom  giving  effect  to  invalid  deeds,  wills,  or  other  instruments. 

•  •  •  •  •  *  ■  •  >        '  •  •  •        • 

"12,  Legalizing,  except  as  against  the  state,  the  unauthorized  or 
invalid  act  of  any  of&cer":  Wash.  Const.,  art.  2,  i  28. 


174  LAW  FOR  NOTARIES  PUBLIC. 


CHAPTER  IX. 

DEPOSITIONS. 

§     89.     Introduction:  History. 

§     90.     Definition. 

§     91.     When  Deposition  may  be  Taken. 

§     92.     Notary  Public  may  Take, 

i     93.     :   When  Disqualified. 

§     94.     Whose  Deposition  may  be  Taken. 

S     95.     Depositions:  Washington  Statutes. 

§  96.  Depositions:  By  Commission:  Section  1240,  Eemington  and 
Ballinger's  Code. 

§     97.     :   By  Commission:   Continued. 

§     98.     :    On   Notice:    Section    1233,   Eemington   and   Ballinger*! 

Code. 

§  99.  :  Perpetuation  of  Testimony:  Sections  1249-1253,  Rem- 
ington and  Ballinger's  Code. 

§  100.  :  Probate  Procedure:  Section  1620,  Remington  and  Bal- 
linger's Code. 

§  101.  :  Probate  Procedure:  Section  1298,  Remington  and  Bal- 
linger's Code. 

§  102.     :  Contested  Election  Cases:  Notary  cannot  Take. 

§  103.    :  Criminal  Law. 

§  104.     Notice  to  Nonresident  Party. 

§  105.     Interrogatories:  Oral  Examination. 

§  106.     Open  Commission. 

S  107.     Witnesses  not  Named  in  Notice. 

§  108.     Witnesses:  Subpoenas. 

§  109.    :  Refusal  to  Attend:  Procedure. 

§  110.    :  Refusal  to  Attend:  Liability. 

§  111.     Depositions:  How  Taken. 

§  112.     :  How  Taken:  How  Returned. 

§  113.     :  Attaching  Exhibits. 

§  89.  Introduction:  History. — When,  under  the  ad- 
miralty law,  a  witness  is  in  a  foreign  country  or  without 
the  jurisdiction  of  a  trial  court,  "letters  rogatory"  are  is- 
sued to  a  court  of  the  foreign  country.  Thereupon  the  for- 
eign judge,  by  reason  of  the  law  of  nations,  examines  the 
witness  himself  or  appoints  a  commissioner  to  do  so.^     In 

1  See  §§  28,  91 ;  1  Greenl.  Ev.,  Rev.),  tit.,  "Letters  Rogatory"; 
S  320;  Bouv.  Law  Diet.  (Bawle's      Nelson  v.  United  States,  Pet.  (C. 


DEPOSITIONS.  175 

England  the  courts  of  chancery  likewise  exercised  the  power 
of  examining  witnesses  out  of  their  jurisdiction  by  commis- 
sions directed  to  foreign  magistrates.^  At  common  law,  the 
courts  coerced  litigants  into  allowing  the  other  party  to 
take  depositions  by  consent,  by  delaying  the  case.  But 
later  on  that  procedure  was  abandoned,  as  it  was  considered 
an  unwarranted  use  of  power.  Then  it  was  that  statutes 
were  passed  allowing  a  party  to  a  cause,  by  following  the 
statute  in  all  its  details,  to  obtain  the  testimony  of  a  person 
who  could  not  be  called  as  a  witness.*  Because  these  stat- 
utes are  in  derogation  of  the  common  law  they  must  be 
strictly  complied  with,  otherwise  the  depositions  taken 
under  them  will  not  be  admissible.* 

§  90.  Definition. — The  word  "deposition,"  as  used  in 
this  chapter,  is  taken  to  mean  the  written  testimony  of  a 
witness  taken  out  of  court  before  a  notary  or  other  person 
duly  authorized  to  take  it,  and  which  is  intended  to  be  used 
upon  the  trial  of  some  cause  in  court  or  before  some  officer 
or  commission  appointed  by  statute.^  A  deposition  is  dif- 
ferent from  an  affidavit,  in  that  a  deposition  is  evidence 
given  by  a  witness  under  interrogatories  written  down  by 
an  official  person;  while  an  affidavit  is  the  mere  voluntary 
act  of  the  party  making  the  oath,  and  may  be,  and  generally 

C.)   235,    Fed.    Gas.    No.     10116;  i  Black's      Law      Diet.,      tit., 

Kuehling  v.  Leberman,  9   Phila.  "Deposition";     Bouv.     Law    Diet. 

(Pa.)  163.  (Rawle's     Rev.),    tit.       "Deposi- 

2  1  Greenl.  Ev.,  §§  320,  251;  tion";  Stimpson  v.  Brooks,  3 
Payne  v.  Danley,  18  Ark.  441,  68  Blatchf.  (U.  S.)  456,  Fed.  Gas. 
Am.  Dec.  187;  9  Am.  &  Eng.  No.  13,454.  "A  deposition  is  a 
Ency.  of  Law,  2d  ed.,  p.  299.  written    declaration    under    oath 

3  13  George  HI,  c.  63;  1  Will-  made  upon  notice  to  the  adverse 
iam  IV,  c.  22;  Galliaud  v.  party  for  the  purpose  of  enabling 
Vaughan,  1  Bos.  &  P.  210;  9  Am.  him  to  attend  and  cross-examine, 
&  Eng.  Ency.  of  Law,  2d  ed.,  p.  or  upon  written  interrogatories": 
299;  1  Greenl.  Ev.,  §321.  Dak.  Code  Civ.  Proc.,  §5279.    As 

4  Frye  v.  Barker,  2  Pick.  to  the  use  of  depositions  before 
(Mass.)  65;  Bird  v,  Halsy,  87  the  Interstate  Commerce  Commis- 
Fed.  671;  Dye  v.  Bailey,  2  Cal.  sion,  see  U.  S.  Rev.  Stats.,  §866, 
383;  9  Am.  &  Eng.  Ency.  of  Law,  and  following. 

2d    ed.,   p.    300,   and   cases   there  "In    common    parlance,    and   in 

cited.  some     clauses     of     the     statute, 


176  LAW  FOR  NOTARIES  PUBLIC. 

is,  taken  without  cognizance  of  the  one  against  whom  it  is  to 
be  used.2 

§  91.  When  Depositions  may  be  Taken. — ^It  may  be  de- 
sirable to  take  depositions  for  use  in  some  foreign  country, 
in  the  courts  of  the  United  States,  in  the  courts  of  some 
sister  state,  or  in  the  courts  of  the  state  of  Washington. 

First,  we  will  consider  depositions  to  be  used  in  some 
foreign  country.  As  a  general  rule,  when  the  court  of  one 
country  desires  to  use  the  testimony  of  a  person  in  some 
foreign  country,  it  issues  to  some  court  in  the  foreign 
country  "letters  rogatory,"  by  which  it  requests  the  foreign 
court  to  take  the  desired  testimony  and  forward  it  to  the 
trial  court.^  Very  often  the  court,  upon  the  receipt  of 
** letters  rogatory,"  appoints  by  a  commission  some  notary 
public  to  take  the  desired  testimony.  He  is  instructed  by 
the  commission  to  return  the  testimony  or  interrogatories 
and  answers  to  the  court  issuing  the  commission,  where- 
upon they  are  forwarded  to  the  foreign  court.  As  a  general 
rule,  the  "letters  rogatory"  will  be  accompanied  with  inter- 
rogatories, and  it  will  be  the  duty  of  the  notary  to  carry 
out  the  commission  issued  to  him  in  the  same  manner  he 
would  were  the  testimony  to  be  used  in  some  court  in  Wash- 
ington. 

In  considering  when  depositions  may  be  taken  for  use  in 
the  courts  of  the  United  States  we  need  but  refer  to  the 
United  States  statute  under  section  28,  page  70,  title 
"Depositions  de  Bene  Esse."  There  we  find  they  may  be 
taken  "when  the  witness  lives  at  a  greater  distance  from 
the  place  of  trial  than  one  hundred  miles,  or  is  bound  on  a 
voyage  to  sea,  or  is  about  to  go  out  of  the  United  States, 

'deposition'     is     often     used     to  oath,    and   reduced   to   writing": 

designate  the  document  contain-  Fu^er  v.  Hodgdon,  25  Me.  243. 

ing   the   interrogatories,   answers  ^  Stimpson       v.       Brooks,       3 

,        x./»     X     ^  xt.            •  *    *«  Blatchf.    (U.   S.)    456,  Ted.   Cas. 

and  certificate  of  the  magistrate;  ,o  ^e) 

,     .  No.  13,454. 

while  in  other  sections  it  is  more  i  9  Am.  &  Eng.  Ency.  of  Law, 

appropriately    used    to    designate  gd  ed.,  p.  298;  see  §  8&;  Nelson  v. 

the    narrative     of    the     witness,  United  States,  Pet.   (C.  C.)   236, 

made  under  the   sanction  of   an  note  a,  Fed.  Cas.  No.  10,116. 


DEPOSITIONS.  177 

or  out  of  the  district  in  which  the  case  is  to  be  tried,  and  to 
a  greater  distance  than  one  hundred  miles  from  the  place 
of  trial,  or  when  he  is  ancient  and  infirm.  "^ 

If  the  depositions  are  to  be  taken  under  the  section  of 
the  United  States  laws  just  quoted,  the  notary  should  first 
be  satisfied  in  some  manner  that  some  one  of  the  causes 
therein  set  forth  is  true.  As  a  general  rule,  however,  the 
attorney  desiring  to  take  depositions  will  have  the  notary 
appointed  by  a  commission  out  of  the  circuit  or  district 
court  to  take  the  testimony,  and  it  will  then  be  the  duty  of 
the  notary  to  carry  out  the  commission  according  to  the  laws 
of  Washington.^ 

In  taking  depositions  for  use  in  some  sister  state  the 
notary  should  follow  the  commission  as  issued  to  him  by  the 
court  of  that  state  and  supplement  his  instructions  from 
the  sister  state  with  the  laws  of  Washington  whenever  it  is 
necessary  to  do  so. 

That  brings  us  to  the  question  of  when  depositions  may 
be  taken  to  be  used  in  the  courts  of  Washington.  We  find 
that  there  are  four  cases  under  which  they  may  be  taken 
for  use  in  the  superior  courts :  first,  when  the  witness  resides 
out  of  the  county  and  is  more  than  twenty  miles  from  the 

2  U.  S.  Eev.  stats.,  §  782.  upon    the    way    of    usual    travel 

"For  this  purpose  the  residence  from  the  residence  of  the  witness 

of  the  witness  is  not  to  be  deter-  to  the  place  of  trial:  In  re  Fos- 

mined    by    applying    with    great  ter,  44  Vt.  570;  and  by  the  usual 

strictness   the   rules  of   domicile,  land    route,    though    there    is    a 

and    his    deposition   usually   may  nearer    and    more    used    route    by 

be  taken  at  his  place  of  business,  water:  Marston    v.    Forward,    5 

if  within  a  different  state  from  Ala.  347. 

his  home":  9  Am.  &  Eng.  Ency.  The  distance  from  the  place  of 

of  Law,  2d  ed.,  p.  309.  trial  is  to  be  determined  by  the 

A  witness    lives    at    a  greater  usual,     ordinary,     and      shortest 

distance  than  one  hundred  miles  route   of  public   travel,   and   not 

from  the  place  of  trial  if  he  is  by  a  mathematically  straight  line 

sojourning  there  for  any  lawful  between  the    place    of    residence 

purpose:      Mutual    Benefit     Life  and  the  place  of  trial:  Jennings 

Ins.  Co.  V.  Eobison,  19  U.  S.  App.  v.  Menaugh,  118  Fed.  ,612;  Pow- 

266,  58  Fed.  723,  7  C.  C.  A.  444,  ers  v.  Powers  (Ky.  1899),  52  S. 

22  L.  E.  A.  325.  W.  845. 

The  distance  is  to  be  computed  8  U.  S.  Bey.  Stats.,  §  866. 

12 


178  LAW  FOR  NOTARIES  PUBLIC. 

place  of  trial;  secondly,  when  the  witness  is  about  to  leave 
the  county,  and  go  more  than  twenty  miles  from  the  place 
of  trial,  and  there  is  probability  that  he  will  continue  ab- 
sent when  testimony  is  required;  thirdly,  when  the  witness 
is  sick,  infirm,  or  aged,  so  as  to  make  it  probable  that  he 
will  not  be  able  to  attend  at  the  trial;  fourthly,  when  the 
witness  resides  out  of  the  state,  [a]  There  are  also  two 
reasons  upon  which  depositions  may  be  taken  for  use  before 
justices  of  the  peace.  The  first  is  when  such  witness  re- 
sides, or  is  about  to  go  more  than  twenty  miles  from  the 
place  of  trial;  the  second  is  when  he  is  so  sick,  infirm  or 
aged,  as  to  make  it  probable  that  he  will  not  be  able  to 
attend  at  the  trial,  [b] 

It  is  to  be  understood  that  in  all  the  cases  set  out  in  this 
section  the  testimony  of  the  witness  must  be  material  and 
necessary. 

[a]  "The  testimony  of  a  witness  may  be  taken  by  deposition,  to 
be  read  in  evidence  in  an  action,  suit,  or  proceeding  commenced  and 
pending  in  any  court  in  this  state,  in  the  following  causes: — 

"1.  When  the  witness  resides  out  of  the  county,  and  more  than 
twenty  miles  from  the  place  of  trial; 

"2.  When  the  witness  is  about  to  leave  the  county,  and  go  more 
than  twenty  miles  from  the  place  of  trial,  and  there  is  probability 
that  he  will  continue  absent  when  testimony  is  required; 

"3.  When  the  witness  is  sick,  infirm,  or  aged,  so  as  to  make  it 
probable  that  he  will  not  be  able  to  attend  at  the  trial; 

"4.  When  the  witness  resides  out  of  the  state":  Laws  1877,  p.  89, 
§  411;  Cd.  1881,  §  409;  2  H.  C,  §  1666;  Bal.  Code,  §  6017;  1  Rem.  & 
Bal.  Code,  §  1231. 

[b]  "Either  party,  in  an  action  depending  before  a  justice  of  the 
peace,  may  cause  a  deposition  of  a  witness  therein  to  be  taken,  when 
such  witness  resides,  or  is  about  to  go  more  than  twenty  miles  from 
the  place  of  trial,  or  is  so  sick,  infirm,  or  aged,  as  to  make  it  prob- 
able that  he  will  not  be  able  to  attend  at  the  trial":  Laws  1854, 
p.  234,  §  66;  Cd.  1881,  §  1878;  Bal.  Code,  §  6749;  1  Bern.  &  Bal.  Code, 
§  1907. 

§  92.  Notary  Public  may  Take. — A  notary  public  may 
take  depositions  to  be  used  in  a  foreign  country  if  he  is  ap- 
pointed by  a  commission  out  of  a  federal  court.  It  need 
hardly  be  said  that  a  United  States  court  would  not  issue 


DErOSITIONS.  179 

such  a  commission  to  him  if  he  were  not  designated  by  a 
United  States  law  as  an  officer  qualified  to  take  depositions 
to  be  used  in  the  courts  of  the  United  States.  A  notary- 
is  given  that  power  by  the  Revised  Statutes,  sections  863, 
and  866,  "Depositions  de  Bene  Esse,"  "Notaries  may  Take 
Depositions,"  and  "Depositions  may  be  Taken  in  Mode 
Prescribed  by  State  Laws,"  as  found  on   pages  70-72. [a] 

As  to  taking  depositions  for  use  in  the  courts  of  other 
states,  a  notary  of  Washington  may  take  them  if  he  has  been 
designated  in  a  commission  issued  out  of  the  court  of  some 
other  state.  In  many  states  a  commission  may  be  issued 
in  blank  to  a  notary  public,  leaving  the  name  of  the  notary 
to  be  filled  in  when  the  deposition  is  taken;  but  in  others 
a  blank  commission  is  invalid.^  If  a  blank  commission  was 
agreed  to  by  the  parties,  however,  it  would  be  held  valid.^ 
An  interesting  question  in  this  connection  presents  itself 
when  we  come  to  interpret  the  Law  of  1901,  page  23,  sec- 
tion 1  (1  Rem.  &  Bal.  Code,  §1236),  which  deals  with  the 
power  of  compelling  the  attendance  of  witnesses  before 
notaries.  This  discussion  is  taken  up  under  section  109, 
page  196.  It  becomes  important  in  this  connection  when  a 
notary  of  Washington  wants  to  examine  a  person  of  this 
state  under  a  commission  from  a  foreign  state,  but  the  wit- 
ness refuses  to  appear, 

A  notary  is  given  the  broad  power  "to  take  depositions" 
by  the  laws  of  1890  ;[b]  but  it  will  be  noticed  that  the 
law  does  not  specifically  state  that  a  notary  may  take  deposi- 
tions to  be  used  in  a  foreign  state.  This  law  undoubtedly 
gives  him  full  power  to  take  depositions  to  be  used  in  the 
courts  of  this  state. 

[a]  Phelps  V.  S.  S.  City  of  Panama,  1  Wash.  Ter,  615,  July,  1877, 
Chief  Justice  Lewis. 

Following  the  federal  admiralty  practice,  the  Washington  territorial 
court  decided  a  deposition  for  use  in  admiralty  could  be  taken  before  a 
notary  public. 

1  Brackett    v.    Nikirk,    20    HI,  441;  Rupert  v.  Grant,  6  Smedes  & 

App.  525;  Dumont  v.  McCracken,  M.  (Miss.)  433. 

(5  Blackf.    (Ind.)    355;   Turner  v,  2  Carlyle    v.  Plumer,    11    WIb. 

Patterson,    5    Dana     (Ky.),    292;  99;  Hall  t.  Lay,  2  Ala.  529. 
Worsham  v.  Goar,  4  Port.  (Ala.) 


180  LAW  FOB  NOTARIES  PUBLIC. 

[b]  "Every  duly  qualified  notary  public  is  authorized  in  any  county 
in  this  state, — 

"1 

"2 

"3.  To  take  depositions  and  affidavits,  and  administer  all  oaths 
required  by  law  to  be  administered  .  .  .  .":  Laws  1890,  p.  474,  §  4; 
1  H.  C,  §  332;  Bal.  Code,  §  248;  2  Eem.  &  Bal.  Code,  §  8298. 

§  93.  Notaiy  may  Take:  When  Disqualified.— The  sub- 
ject of  the  notary  being  disqualified  to  take  depositions  in 
any  case  is  treated  under  section  32,  page  89. 

§  94.  Whose  Depositions  may  be  Taken. — The  deposi- 
tions of  either  of  the  parties  to  the  suit  may  be  taken  at  the 
instance  of  a  coparty,^  or  they  may  be  taken  at  the  instance 
of  the  adverse  party ,2  [a]  [b]  and,  of  eourse,  the  deposi- 
tions of  witnesses  who  are  not  parties  may  be  taken.^  In 
all  these  cases  it  is  presumed  that  the  parties  are  not  pre- 
cluded from  giving  their  testimony  for  any  other  reason. 
The  testimony  of  a  corporation  may  be  taken  by  taking  the 
depositions  of  its  officers  and  agents.* 

[a]  "A  party  to  an  action  or  proceeding  may  be  examined  as  a 
witness,  at  the  instance  of  the  adverse  party,  or  of  one  of  several 
adverse  parties,  and  for  that  purpose  may  be  compelled  in  the  same 
manner  and  subject  to  the  same  rules  of  examination  as  any  other 
witness  to  testify  at  the  trial,  or  he  may  be  examined  on  a  commis- 
sion": Laws  1854,  p.  189,  §  305;  Code  1881,  §  403;  2  H.  C,  §  1660; 
Bal.  Code,  §  6008;  1  Eem.  &  Bal.  Code,  §  1225. 

[b]  "A  party  to  an  action  or  proceeding,  having  filed  interroga- 
tories to  be  answered  by  the  adverse  party,  ....  shall  not  thereby 
be  precluded  from  examining  such  adverse  party  as  a  witness  at  the 
trial,  nor  from  taking  his  deposition  to  be  read  at  the  trial":  Laws 
1891,  p.  34,  §  4;  2  H.  C,  §  1663;  Bal.  Code,  §  6011;  1  Rem.  &  Bal. 
Code,  §  1228. 

1  Bespass  v.  Morton,  Hard.  adversary,  although  permissible 
(Ky.)  226;  Shufelt  v.  Power,  10  ^  by  the  state  practice:  Ex  parte 
How.  Pr.  (N.  Y.)  286;  13  Cyc.  Fisk,  113  U.  S.  713,  5  Sup.  Ct. 
Law  &  Proc,  p.  839.  Bep.  724,  28  L.  ed.  1117;  Turner 

2  Ex  parte  Miller,  11  Ohio  S.  &  v.  Shackman,  27  Fed.  183. 

C.  PI.  Dec.  69,  12  Ohio  Cir.  Dec.  »  13  Cyc.  Law  &  Proc,  p.  839. 

102.    In  the  United  States  courts  *  Kreider    v.  "Wisconsin    River 

the  deposition  of  a  party  cannot  Paper  etc.  Co.,  110  Wis.  645,  86 

be  taken  at  the  instance  of  his  N.  W.  662. 


DEPOSITIONS.  181 

§  95.  Depositions:  Washington  Statutes. — There  are  two 
laws  in  Washington  under  either  of  which  a  person  inay  pro- 
ceed to  take  depositions  in  this  state.  The  first  is  "by  com- 
mission" and  the  second  is  "on  notice."  These  are  taken 
up  in  the  following  sections. 

§  96.  Depositions:  By  Commission:  Section  1240,  Rem- 
ington and  Ballinger's  Code. — One  of  the  way»  in  which 
a  notary  may  be  authorized  to  take  depositions  is  by  a  com- 
mission issued  out  of  some  court  of  the  United  States,  of  a 
sister  state,  or  of  the  state  of  Washington,  [a] 

The  commission  will  always  be  issued  if  the  parties  thereto 
consent ;  ^  but  if  the  consent  of  the  other  cannot  be  obtained 
by  one  of  the  parties,  it  will  be  necessary  for  the  attorney 
to  make  an  application  to  the  court  on  notice  to  the  other 
party .^  It  is  but  necessary  to  add  in  this  connection  that 
upon  proper  application  and  a  proper  showing  the  court 
will  order  a  commission  to  issue  to  a  notary  to  take  the  tes- 
timony of  certain  witnesses.  It  is  when  a  commission  has 
been  delivered  to  a  notary  that  his  duties  begin.  As  a  gen- 
eral rule,  a  commission  is  issued  upon  an  order  from  the 
court  by  the  clerk  or  deputy  clerk  of  the  court  in  which 
it  is  granted.  It  should  designate  the  action  or  suit  in 
which  the  testimony  is  to  be  taken ;  the  name  of  the  notary, 

or  " ,  notary  public,"  so  that  the  name  may  be  filled 

in  when  the  deposition  is  taken ;  the  names  of  the  witnesses 
to  be  examined;^  the  time  and  place  of  exTecution  unless  it 
is  to  be  executed  in  a  foreign  state  when  no  particular  place 
need  be  specified;  general  instructions  as  to  the  mode  of 

1  13  iCyc.  Law  &  Proe.,  p.  859;  immaterial:  McCutchen  v.  Lag- 
Knight  V.  Emmons,  4  Mich.  554;  gins,  109  Ala.  457,  19  South.  810; 
Pickard  v.  Bates,  38  111.  40.  Marr  v.  Wetzel,  3  Cal.  2;  Ellis  v. 

2  13  Cyc.  Law  &  Proe.,  p.  859;  Spaulding,  39  Mich.  366;  Smith 
Worsham  v.  Goar,  4  Port.  (Ala.)  v.  Castles,  1  Gray  (Mass.),  108. 
441;  Hendricks  v.  Craig,  5  N.  J.  But  if  the  name  in  the  commis- 
L.  567.  sion  and  the  name  of  the  witness 

3  If  in  a  witness'  name  in  a  whose  deposition  was  taken  are  dis- 
commission  a  second  initial  letter  similar  the  deposition  will  be  re- 
or  name  is  omitted,  or  there  is  a  jected:  Smith  v.  Westerfield,  88 
variation  which  does  not  change  Cal.  374,  26  Pac.  206;  Scholes  v. 
the    sound,   the   mistake   will   be  Ackerland,  13  HI.  650. 


182  LAW  FOR  NOTARIES  PUBLIC. 

executing  the  commission,  which  should  include  directions 
that  notice  be  given  to  the  adverse  party  of  the  time  and 
place  of  taking  the  depositions,  and  also  directions  as  to  the 
time  and  manner  the  return  to  the  proper  court  or  officer 
should  be  made.  The  commission  should  be  signed  or  au- 
thenticated by  the  clerk  of  the  court,  should  bear  date  as  of 
its  issue,  and  should  bear  the  seal  of  the  court  unless  that 
is  done  away  with  by  statute.* 

[a]  "Any  superior  court  in  this  state,  or  any  judge  thereof,  is  au- 
thorized to  grant  a  commission  to  take  depositions  within  or  without 
this  state.  The  commission  must  be  issued  to  a  person  or  persons 
therein  named,  by  the  clerk,  under  the  seal  of  the  court  granting 
the  same,  and  depositions  under  it  may  be  taken  upon  written  inter- 
rogatories or  upon  oral  questions  or  partly  upon  oral  and  partly  upon 
written  interrogatories.  Before  any  such  commission  shall  be  granted, 
the  person  intending  to  apply  therefor  shall  serve  upon  the  adverse 
party  a  notice  of  his  intention  to  make  such  application,  stating 
the  time  when  and  the  place  where  such  application  will  be  made, 
which  notice  shall  be  served  in  the  same  manner  and  for  the  same 
time  as  provided  in  section  1233,  unless  the  court  or  judge,  for  suffi- 
cient cause  shown  by  affidavit,  prescribe  a  shorter  time.  At  the  time 
the  application  is  presented,  the  court  or  judge  shall  settle  the  inter- 
rogatories, if  any  have  been  served  and  the  parties  have  not  settled 
the  same.  The  clerk,  upon  issuing  the  commission,  shall  attach  the 
interrogatories  thereto,  if  any  have  been  agreed  upon  or  settled  by 
the  court,  and  immediately  forward  the  same  to  the  commissioner. 
At  least  five  days'  notice  must  be  given  to  the  party  or  witness  to 
be  examined  out  of  the  state,  in  case  such  examination  shall  be  had 
upon  oral  interrogatories,  and  the  person  before  whom  the  deposition 
of  the  witness  shall  be  taken  shall  have  the  same  power  to  compel  the 
attendance  of  such  parties  or  witnesses  as  any  person  authorized  to 
take  such  depositions  within  this  state":  Laws  1897,  p.  206,  §  1;  Bal. 
Code,  §  6023;  1  Eem.  &  Bal.  Code,  §  1240. 

4  13  Cyc.  Law  &  Proc,  pp.882-  444;   Sydnor  v.  Palmer,  29  Wis. 

8S9;   Brooks  v.  Brooks,   16  S.  C.  226;  Strayer  v.  Wilson,  54  Iowa, 

621;    Ragan  v.   Cargill,   24   Miss.  565,  7  N.  W.  7;  Borders  v.  Bar- 

540  J  Stone  v.  Stillwell,  23  Ark.  ber,  81  Mo.  636. 


DEPOSITIONS.  183 

FORM  Lin. 

In  the  Superior  Court  of  the  State  of  Washington  for  the  County  of 

King. 

In  Probate. 

In  the  Matter  of  the  Estate  of  ^ 

I  No. . 

John  Stiles,  r  ^  ,        .-,,       .     r„,      .„,. 

I    Order  of  Judge  to  Take  Testimony. 
Deceased.  J 

To  John  Doe  of  304  Central  Bldg.,  Seattle,  Wash.,  Greeting: 

Whereas,  it  appears  to  the  judge  of  our  said  superior  court  of  the 
county  of  King,  state  of  Washington,  that  William  Stiles,  a  resident 
of  Seattle,  in  the  state  of  Washington,  is  a  material  witness  at  the 
hearing  of  a  certain  petition,  now  pending  in  our  said  superior  court 
for  the  probate  of  the  alleged  annexed  last  will  and  testament  of 
John  Jones,  deceased,  and  that  the  attendance  of  said  witness  cannot 
be  procured  at  the  said  hearing,  we,  in  confidence  of  your  prudence 
and  fidelity,  have  appointed  you  and  by  these  presents  do  appoint 
you  a  commissioner  to  examine  said  witness,  and  therefore  we 
authorize  and  empower  you  at  a  time  and  place  to  be  by  you  fixed, 
to  take  the  deposition  of  the  said  William  Stiles,  and  to  continue 
from  day  to  day  until  the  whole  of  said  deposition  be  taken;  dili- 
gently so  examine  said  witness,  on  the  interrogatories,  annexed  to 
this  commission,  on  his  oath,  first  taken  before  you  and  cause  the 
said  examination,  of  the  said  witness  to  be  taken  by  questions  and 
answers,  and  to  be  reduced  to  writing  and  signed  by  the  said  witness, 
and  by  yourself,  and  then  certify  and  return  the  same  annexed  to 
this  commission,  in  a  sealed  envelope  unto  our  said  superior  court 
aforesaid,  directed  to  the  clerk  thereof,  by  mail  or  other  usual 
channel  of  conveyance  with  all  convenient  speed,  inclosed  under  your 
seal. 

Witness  the  Hon.  Henry  Jones,  judge  of  the  said  superior  court 
and  the  seal  of  said  court,  hereunto  aflixed  this  4th  day  of  December, 
1910. 


Clerk. 
By  . 


Deputy  Clerk. 

§  97.  Depositions:  By  Commission:  Continued. — ^Upon 
receiving  a  commission  to  take  depositions  the  notary  would 
follow  the  same  course  of  procedure  in  subpoenaing  the 
witness,  etc.,  as  is  set  out  in  the  following  section  on  ''Depo- 
sitions: On  Notice." 


184  LAW  FOB  NOTARIES  PUBLIC. 

§  98.  Depositions:  On  Notice:  Section  1233,  Remington 
and  Ballinger's  Code. — By  statute  in  this  state,  Laws  of 
1891,  [a]  either  party  may  have  the  deposition  of  a  witness 
taken  in  this  state  before  any  notary  without  obtaining  a 
commission  from  some  court.  All  that  is  necessary  is  for 
the  party  desiring  the  depositions  to  serve  on  the  adverse 
party  or  his  attorney  a  notice  of  the  time  and  place  of  the 
examination,  [aa]  The  notice  must  be  served  long  enough 
before  the  date  set  to  allow  the  adverse  party  sufficient 
time  by  the  usual  route  of  travel  to  attend,  and  three  days 
for  preparation,  exclusive  of  the  day  of  service,  [b]  The 
examination  may  be  adjourned  from  day  to  day.  The  notice 
must  specify  the  action  or  proceeding,  the  name  of  the 
court  or  tribunal  in  which  the  deposition  is  to  be  used,  the 
time  and  place  ^  of  taking  the  depositions  and  by  the  case 
of  Donaldson  v.  Winningham,  54  Wash.  19,  102  Pac.  879, 
[c]  the  names  of  the  witnesses  to  be  examined.^  The  notice 
must  be  served  upon  the  adverse  party,  his  agent,  or  attor- 
ney of  record,  or  be  left  at  his  usual  place  of  abode. 

If  the  situation  demands  that  the  depositions  be  taken  on 
a  shorter  notice  than  that  set  out  in  the  statute,  this  may  be 
accomplished  by  making  application  to  the  judge  or  justice 
of  the  peace.  Upon  showing  by  affidavit  that  there  is  a  suffi- 
cient cause,  the  court  will  make  an  order  prescribing  a 
shorter  time  for  the  notice,  [d]     A  copy  of  the  order  short- 

1  In  a  notice  for  the  taking  of  further,  that  Wray  being  identi- 

a   deposition,   if   there   be   a    de-  fied  in  the  notice  as  an  attorney 

feet  as  to  the  place  of  the  tak-  at   law    of   the    place   where   the 

ing,  it  is  waived  by  the  attend-  deposition  was  taken,  and   there 

ance      of      the      party     notified:  being   no    claim    that   there    was 

George  v.  Nichols,  32  Me.   179.  any  other  person  of  that  name  or 

A    notice    specified     that    the  having   one    sounding   like   it   in 

deposition  would  be  taken  at  the  that    place,    the    opposing    party 

ofiice  of  "Dan.  Ray,"  whereas  the  could     not     have     been     misled: 

deposition   itself   showed   that   it  Sparks  v.  Sparks,  51  Kan.  195,  32 

was  taken  at  the  office  of  "Dan-  Pac.  892. 

iel  E.  Wray."     It  was  held  that  2  Error  in    the    name    of    the 

"Dan."  being  an  abbreviation  of  proposed  witness  is  cured  by  the 

"Daniel,"  and  "Ray"  and  "Wray"  appearance  of  the  adverse  party 

being    idem      sonans     (sounding  and  cross-examination:     Waldron 

alike),  the   omission  of  the  mid-  v.  St.  Paul,  33  Minn.  87,  22  N.  W. 

die  letter  was  immaterial;   and,  4. 


DEPOSITIONS.  185 

ening  the  time  must  be  served  with  the  notice.  Either  party 
may  commence  taking  testimony  by  depositions  at  any  time 
after  service  of  summons  upon  the  defendants,  [e] 

Before  proceeding  to  take  the  depositions  under  these 
statutes,  it  is  the  duty  of  the  notary  to  be  satisfied  that  the 
requirements  set  out  have  all  been  fulfilled. 

[a]  "Either  party  may  have  the  deposition  of  a  witness  taken  in 
this  state  before  any  ....  notary  public,  by  serving  on  the  adverse 
party  or  his  attorney  previous  notice  of  the  time  and  place  of  ex- 
amination. The  notice  shall  be  served  such  time  before  the  time 
when  the  deposition  is  to  be  taken  as  to  allow  the  adverse  party 
sufficient  time  by  the  usual  route  of  travel  to  attend,  and  three  days 
for  preparation,  exclusive  of  the  day  of  service,  and  the  examination 
may,  if  so  stated  in  the  notice,  be  adjourned  from  day  to  day.  The 
notice  shall  specify  the  action  or  proceeding,  the  name  of  the  court 
or  tribunal  in  which  the  deposition  is  to  be  used,  and  the  time  and 
place  of  taking  the  deposition.  It  shall  be  served  upon  the  adverse 
party,  his  agent,  or  attorney  of  record,  or  be  left  at  his  usual  place 
of  abode":  Laws  1891,  p.  34,  §  7;  2  H.  C,  §  1668;  Bal.  Code,  §  6019;  1 
Rem.  &  Bal.  Code,  §  1233. 

[aa]  FORM  UV. 
State  of  Washington, 
County  of  Spokane, — bs. 

In  the  Superior  Court  of  Spokane  County. 

Richard  Roe, 

Plaintiff, 

vs. 

John  Stiles, 

Defendant. 


No.  . 

Notice  of  Taking  Deposition. 


To  John  Stiles: 

Please  take  notice:  That  the  deposition  of  William  Stiles,  4012 
Corliss  Avenue,  Seattle,  Wash.,  witness  for  the  plaintiff  in  the  above- 
entitled  action,  will  be  taken  before  John  Doe,  notary  public,  at  his 
office,  304  Central  Bldg.,  cor.  9th  ave.  and  Marion  street,  in  the  city 
of  Seattle,  county  of  King,  in  the  state  of  Washington,  on  the  4th 
day  of  December,  1910,  commencing  at  the  hour  of  9  o'clock  A.  M.,  of 
that  day,  and  the  examination  of  said  witness  will  be  continued  from 
day  to  day  and  over  Sunday,  if  necessary,  between  the  hours  of  9  A. 
M.  and  5  P.  M.  until  completed;  and  that  said  deposition  will  be  read 
in  evidence  on  behalf  of  the  plaintiff  upon  the  trial  of  said  action  in 
the  above-entitled  court. 


186  LAW   FOB   NOTARIES   PUBLIC. 

The  reason  for  taking  said  deposition  is  that  said  witness  resides  at 
a  distance  greater  than  twenty  miles  from  the  place  of  trial  and  out 
of  the  subdistrict  in  which  said  trial  will  be  held. 
Dated  at—,  November  28th,  1910. 

FRANK  JONES, 
Attorney  for  Plaintiff. 

Legal  service  of  the  foregoing  notice,  by  delivery  of  a  correct 
copy  thereof  to  the  undersigned  at  the  county  of  Spokane  in  the  state 
of  Washington,  on  this  28th  day  of  November,  1910,  is  hereby  ad- 
mitted. 

JOHN  JONES, 
Attorney  for  Defendant. 

[b]  Hobart  v.  Jones,  5  Wash.  385,  31  Pac.  879,  December,  1892, 
Judge  Dunbar:  "A  party  cannot  claim  insufficiency  of  notice  where  he 
appeared  and  upon  his  own  motion  had  the  hearing  continued  to 
enable  him  to  file  cross-interrogatories." 

[c]  Donaldson  v.  Winningham,  54  Wash.  19,  102  Pac.  879,  July, 
1909,  Judge  Gose:  "The  statute  [E©m.  &  Bal.  Code,  §  1233;  Bal.  Code, 
§  6019]  as  an  entirety  clearly  contemplates  that  the  name  of  the 
witness  shall  be  stated  in  the  notice The  naming  of  the  wit- 
ness in  the  notice,  if  not  within  the  letter,  ig  within  the  spirit  of  the 
statute." 

[d]  "The  court,  or  a  judge  thereof,  or  in  an  action  or  proceeding 
before  a  justice  of  the  peace,  the  justice,  may,  upon  sufficient  cause 
being  shown  by  affidavit,  prescribe  a  shorter  time  for  notice  than  that 
specified  in  the  last  preceding  section.  A  copy  of  the  order  shortening 
the  time  must  be  served  with  the  notice":  Laws  1891,  p.  35,  §  8; 
2  H.  C,  §  1669;  Bal.  Code,  §  6020;  1  Rem.  &  Bal.  Code,  §  1234. 

"The  notice  shall  be  served,  and  the  deposition  taken,  certified,  and 
returned,  according  to  the  law  regulating  the  taking  of  depositions  to 
be  read  in  the  superior  court":  Laws  1854,  p.  234,  §  67;  Code  1881, 
§  1879;  Bal.  Code,  §  6750;  Rem.  &  Bal.  Code,  §  1908. 

[e]  "Either  party  may  commence  taking  testimony  by  depositions 
at  any  time  after  service  of  summons  upon  the  defendants":  Laws 
1877,  p.  90,  §  412;  Code  1881,  §  410;  2  H.  C,  §  1667;  Bal.  Code,  §  6018; 
1  Rem.  &  Bal.  Code,  §  1232. 

§  99.  Depositions:  Perpetuation  of  Testimony:  Sections 
1249-1253,  Remington  and  Ballinger's  Code. — To  take  depo- 
sitions under  section  1233  or  section  1240  as  set  out  above  it 
is  necessary  to  show  that  there  is  an  action,  suit,  or  pro- 
ceeding commenced  and  pending  in  some  court  in  this  state. 
But  when  no  action  has  been  begun,  if  it  is  possible  to  show 


DEPOSITIONS.  187 

sufificient  reason  for  wanting  to  perpetuate  the  testimony 
of  a  witness  in  connection  with  some  matter,  a  person  may 
apply  to  a  court  or  judge  for  a  commission  appointing  a 
notary  to  take  the  testimony  of  certain  named  witnesses.^ 
"When  appointed  such  commissioner,  a  notary  has  but  to 
carry  out  instructions  in  the  same  manner  he  would  those 
of  any  other  commission. 

§  100,  Depositions:  Probate  Procedure:  Section  1620, 
Remington  and  Ballinger's  Code. — When  a  person  bound  by 
a  contract  in  writing  to  convey  any  real  property  dies  before 
making  the  conveyance,  the  superior  court  of  the  county 
in  which  the  land  lies  can  compel  the  executor  or  adminis- 
trator to  convey  the  property  to  the  person  entitled  there- 
to.2  The  petitioner  in  such  case,  or  anyone  resisting  the 
claim  of  the  petitioner,  may  take  the  testimony  of  witnesses 
in  support  of  his  claim  by  deposition.  Notice  of  the  time 
and  place  of  taking  such  deposition  must  be  published  for 
three  successive  weeks  prior  to  taking  the  same;  it  must 
state  the  name  of  the  notary,  the  names  of  the  witnesses, 
and  must  be  served  personally  on  the  executor  or  adminis- 
trator if  he  was  appointed  in  this  state.  The  publication 
must  be  made  in  a  newspaper  designated  by  the  court.  Any 
party  interested  in  the  estate  may  appear  and  cross-examine 
the  witnesses.  The  statute  on  depositions  regulates  the  prac- 
tice, [a] 

[a]  "The  testimony  of  witnesses  in  support  of  the  claim  of  the 
petitioner  may  be  taken  by  deposition  whenever  the  deposition  of 
such  witnesses  might  be  taken  to  be  used  in  the  trial  of  a  civil  action; 
but  notice  of  the  time  and  place  of  taking  such  deposition  shall  be 
published  by  the  petitioner,  in  the  paper  required  to  be  designated 
by  section  1611  [this  is  a  paper  designated  by  the  judge],  for  three 
successive  weeks  prior  to  taking  the  same,  which  notice  shall  also 
state  the  name  of  the  officer  before  whom  the  deposition  is  to  be 
taken,  and  the  names  of  the  witnesses  whose  testimony  is  proposed 
to  be  taken  at  such  time  and  place,  and  shall  also  be  served  personally 

1  Code   1881,   §§423-427;   2   H.  2  Laws   1891,  p.  390,  §40;   Bal. 

C,      §§1688-1692;      Bal.      Code,  Code,  §  6381 ;  1  Eem.  &  Bal.  Code, 

§§6034-6038;      1    Eem.    &     Bal.  81610. 
Code,  §§  1249-1253. 


188  LAW  FOB  NOTARIES  PUBLIC. 

in  all  cases  wherein  personal  service  of  the  notice  is  required  by  the 
provisions  of  section  1611.  [That  specifies  that  the  executor  or  ad- 
ministrator shall  be  served  personally  if  he  was  appointed  in  this 
state.]  Any  party  interested  in  the  estate  may  appear  and  cross- 
examine  such  witnesses,  and  the  manner  of  examination  and  form  of 
such  deposition  shall  be  in  conformity  with  the  statute  regulating 
depositions  of  witnesses  in  civil  actions.  Any  party  interested  in  the 
estate,  and  resisting  the  claim  of  the  petitioner,  may,  after  filing  his 
objections,  take  the  testimony  of  witnesses  in  his  behalf  in  like 
manner  as  in  civil  actions":  Laws  1891,  p.  392,  §  48;  2  H.  C,  §  1127; 
Bal.  Code,  §  6391;  1  Eem.  &  Bal.  Code,  §  1620. 

§  101.  Depositions:  Probate  Procedure:  Section  1298, 
Remin^on  and  Ballinger's  Code. — "If  any  witness  be  pre- 
vented by  sickness  from  attending  at  the  time  when  any 
will  may  be  produced  for  probate,  or  reside  out  of  the  state 
or  more  than  thirty  miles  from  the  place  where  the  will  is 
to  be  proven,  such  court  may  issue  a  commission,  annexed  to 
such  will,  and  directed  to  any  judge,  justice  of  the  peace, 
or  mayor,  or  other  person,  empowering  him  to  take  and 
certify  the  attestation  of  such  witness":  Laws  1854,  p.  315, 
§18;  Code  1881,  §1351;  2  H.  C,  §863;  Bal.  Code,  §6101; 
Rem.  &  Bal.  Code,  §  1298. 

§  102.  Depositions :  Contested  Election  Cases :  Notary 
cannot  Take. — There  is  one  case  set  forth  in  the  statutes  of 
Washington  when  depositions  may  be  taken,  but  not  by  a 
notary  public.  That  is  in  the  case  of  a  contest  for  a  seat 
in  the  House  of  Representatives.  In  that  event  the  deposi- 
tions must  be  taken  by  two  justices  of  the  peace,  [a] 

[a]  "Immediately  on  the  filing  of  such  statement  in  the  clerk's 
office,  the  said  clerk  shall  issue  a  commission  directed  to  two  justices 
of  the  peace  in  the  contestant's  district,  to  meet  at  such  time  and 
place  as  shall  be  specified  in  such  commission,  not  less  than  twenty 
nor  more  than  thirty  days  from  the  time  of  issuing  the  same,  for  the 
purpose  of  taking  depositions  of  such  witnesses  as  the  parties  to  such 
contest  may  wish  to  examine":  Code  1881,  §  3127;  2  Bern.  &  Bal. 
Code,  §  6908. 

§  103.  Depositions:  Criminal  Law. — The  law  relating  to 
crimes  connected  with  depositions  will  be  found  under  section 
53. 


DEPOSITIONS.  189 

There  are  several  sections  in  the  new  criminal  law  of  1909 
which  provide  for  depositions  to  be  taken  to  be  read  in  crim- 
inal trials.  The  statute,  however,  designates  magistrates 
as  the  officers  to  take  the  said  depositions,  which  makes  it 
unnecessary  to  consider  them  in  a  work  on  notaries. 

§  104.  Notice  to  Nonresident  Party. — ^When  the  party 
against  whom  the  deposition  is  to  be  read  is  not  in  the  state, 
and  has  no  agent  or  attorney  of  record  here,  he  may  be 
given  notice  either  of  the  application  for  a  commission  or  of 
the  taking  of  depositions  under  section  1233  of  the  Reming- 
ton and  Ballinger's  Code  by  publication  under  the  Law  of 
1891.  [a]  If  there  is  a  newspaper  in  the  county  where  the 
action  or  proceeding  is  pending,  the  notice  must  be  pub- 
lished in  said  paper  three  consecutive  weeks.  If  there  is  no 
newspaper  in  that  county,  the  publication  may  be  made  in 
some  state  paper  of  general  circulation  in  that  county. 

[a]  "When  the  party  against  whom  the  deposition  is  to  be  read  is 
absent  from  or  a  nonresident  of  the  state,  and  has  no  agent  or  at- 
torney qf  record  therein,  he  may  be  notified  of  the  taking  of  the 
deposition  or  of  the  application  for  a  commission,  by  publication.  The 
publication  must  be  made  three  consecutive  weeks,  in  some  news- 
paper printed  in  the  county  where  the  action  or  proceeding  is  pend- 
ing, if  there  be  any  printed  in  such  county,  and  if  not,  in  some 
newspaper  printed  in  this  state,  of  general  circulation  in  that  county. 
The  publication  must  contain  all  that  is  required  in  the  written  or 
printed  notice,  and  may  be  proved  in  the  manner  prescribed  in  the 
case  of  the  publication  of  summons":  Laws  1891,  p.  35,  §  11;  2  H.  C, 
§  1673;  Bal.  Code,  §  6024;  1  Eem.  &  Bal.  Code,  §  1241. 

§  105.  Interrogatories:  Oral  Examination. — When  ap- 
plication is  made  and  a  commission  granted  under  section 
1240  of  Remington  and  Ballinger's  Code, [a]  depositions 
may  be  taken  upon  written  interrogatories  or  upon  oral 
questions  or  partly  upon  oral  and  partly  upon  written  in- 
terrogatories. 

When  depositions  are  taken  upon  notice  under  section 
1233  of  Remington  and  Ballinger's  Code,[b]  they  may  be 
either  upon  written  interrogatories  or  upon  oral  questions; 
the  section  does  not  designate  how  they  are  to  be  taken. 


190  LAW  FOB  NOTAKIES  PUBLIC. 

It  migtt  be  well  here  to  explain  tlie  difference  between 
"interrogatories"  and  "oral  examination."  When  the  par- 
ties are  not  going  to  be  represented  at  the  taking  of  the 
deposition,  each  formulates  a  set  of  questions  he  desires  the 
notary  to  ask  the  witness.  These  questions  are  known  as 
"interrogatories."  If  there  is  any  dispute  over  the  form 
or  substance  of  any  question  offered  by  either  party,  the 
judge  granting  the  commission  settles  the  dispute  before  the 
set  of  questions  is  finally  made  up  and  sent  to  the  notary. 

If  the  parties  or  their  attorneys  are  to  attend  on  the  tak- 
ing of  the  depositions,  and  it  has  not  previously  been  agreed 
that  they  are  to  be  taken  on  "interrogatories,"  either  party 
or  his  attorney  may  request  the  notary  to  ask  the  witness 
questions.  Thereupon  the  notary  must  put  the  questions  re- 
quested to  the  witness. 


[a]  See  page  182,  note  [a]. 

[b]  See  page  185,  note  [a]. 


§  106.  Open  Commission. — A  commission  to  take  the 
depositions  of  witnesses  not  named  is  called  an  open  com- 
mission, and  may  be  granted  in  some  cases.^  It  is  suffi- 
cient to  say  here  that  if  a  notary  receives  such  a  commission 
it  is  not  for  him  to  question  it;  it  is  his  duty  to  carry  out, 
as  far  as  possible,  the  instructions  of  the  commission. 
Whether  an  open  commission  shall  be  issued  lies  in  the  dis- 
cretion of  the  judge. 

§  107.  Witnesses  not  Named  in  Notice. — While  it  does 
not  come  within  the  jurisdiction  of  the  notary  to  question 
whether  the  witnesses  are  named  in  a  commission  ordered 
by  some  court  as  set  forth  in  the  preceding  section,  it  is 
part  of  his  duty  to  see  that  the  names  of  the  witnesses  are 
set  forth  in  the  notice  when  depositions  are  taken  before 
him  under  section  1233  of  Remington  and  Ballinger's  Code, 
as  set  forth  in  section  98,  page  184. 

1  Anderson's     Law     Diet.;      9       p.  889;  The  Infanta,  Abb.  Adm. 
Am,    &   Eng.    Ency.   of   Law,    2d       2G3,  Fed.  Cas.  No.  7030. 
ed.,  p.  319;  13  Cyc.  Law  &  Proc, 


DEPOSITIONS.  191 

It  will  be  seen  that  section  1233  of  the  Remington  and 
Ballinger'a  Code  does  not  specify  that  the  names  of  the 
witnesses  must  be  set  out,  but  in  Donaldson  v.  Winningham, 
54  Wash.  19,  102  Pac.  879,  July,  1909,  where  the  notice 
stated  that  the  deposition  of  "sundry  witnesses"  would  be 
taken  at  a  time  and  place  and  before  a  person  named,  Judge 
Gose  decided  that  "the  statute  as  an  entirety  clearly  eon- 
templates  that  the  name  of  the  witness  shall  be  stated  in  the 
notice,"  and  that,  "the  naming  of  the  witness  in  the  notice, 
if  not  within  the  letter,  is  within  the  spirit  of  the  statute. ' ' 

§  108.  Witnesses :  Subpoenas. — Any  witness  may  be  sub- 
poenaed and  compelled  by  a  notary  public  to  appear  and 
give  his  deposition  at  any  place  within  twenty  miles  of  the 
abode  of  such  witness,  [a]  [d]  The  procedure  would  be  the 
same  as  subpoenaing  a  person  to  attend  and  to  testify  in 
court,  [b]  [c]  [d]  [e]  [f]  [ff]  Not  only  can  the  witness 
be  compelled  to  attend  and  to  testify,  but  by  the  case  of 
In  the  Matter  of  the  Petition  of  N.  W.  Bolster  (Wash.), 
110  Pac.  547,  August,  1910,  [g]  it  was  held  that  the  witness 
must  produce  documents  on  the  taking  of  a  deposition  by 
a  notary  if  they  have  been  properly  called  for  by  a  subpoena 
duces  tecum.  It  was  contended  in  that  case  that  while  a 
witness  is  compelled  by  section  1235  of  Remington  and  Bal- 
linger'a Code,  [a]  to  appear  and  testify,  the  section  does  not 
say  that  he  must  produce  any  books  or  papers. 

The  following  are  forms  for  subpoenas  to  be  issued  by  the 
notary : 


192  LAW  FOB  NOTARIES  PUBLIC. 

FORM  LV. 

8ubpoena.[d'\ 

OflSce  of  John  Doe,  Notary  Public  for  the  State  of  Washington. 

State  of  Washington, 
County  of  King, — ss. 

Bichard  Boe,  *^ 

PlaintiflF, 
vs. 
John  Stiles, 


)- 


Defendant. 


No.  . 

Subpoena. 


The  State  of  Washington,  to  William  Stiles,  4012  Corliss  Avenue,  Seattle, 
Washington : 
You  ^re  hereby  commanded  to  be  and  appear  at  the  office  of  John  Doe, 
notary  public  of  the  state  of  Washington,  in  room  No.  304  Central  Bwild- 
ing,  corner  of  Ninth  Avenue  and  Marion  Street,  in  the  city  of  Seattle,  at 
9  o'clock  in  the  forenoon  on  the  tenth  day  of  November,  A.  D.  1910,  then 
and  there  to  give  your  deposition  on  behalf  of  John  Stiles,  the  defendant 
in  a  certain  cause  pending  in  the  superior  court  of  the  state  of  Wash' 
ington  for  the  county  of  King,  wherein  Bichard  Boe  is  the  plaintiff  and 
John  Stiles  the  defendant,  and  to  remain  in  attendance  on  said  notary 
public  until  discharged,  and  herein  fail  not,  under  penalty  of  the  law. 

Witness  my  hand  and  seal  this  4th  day  of  December,  A.  T>.  1910. 

[Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington,  residing  at  Seattle. 

[The  words  in  italics  must  be  changed  to  suit  the  occasion,] 

FORM  LVI. 

Subpoena  Duces  Tecum.[d'\ 

Office  of  John  Doe,  Notary  Public  for  the  State  of  Washington. 

State  of  Washington, 
County  of  King, — ss. 

Bichard  Boe, 

PlaintiflF, 
vs. 

John  Stiles, 

Defendant. 

The  State  of  Washington,  to  William  Stiles,  401g  Corliss  Avenue,  Seattle, 

Washington : 

You  are  hereby  commanded  to  be  and  appear  at  the  office  of  John  Doe, 

notary  public  of  the  state  of  Washington,  in  room  No.  S04  Central  BvAld- 

ing,  corner  of  Ninth  Avenue  and  Marion  Street,  in  the  city  of  Seattle,  at 


No.  . 

Subpoena  Duces  Tecum. 


DEPOSITIONS.  193, 

9  o'clock  in  the  forenoon  on  the  tenth  day  of  November,  A.  D.  1910,  then 
and  there  to  give  your  deposition  on  behalf  of  John  Stiles,  the  defendant 
in  a  certain  cause  pending  in  the  superior  court  of  the  state  of  Wash' 
ington  for  the  county  of  King,  wherein  Bichard  Roe  is  the  plaintiff  and 
John  Stiles  the  defendant,  and  to  remain  in  attendance  on  said  notary 
public  until  discharged,  and  herein  fail  not,  under  penalty  of  the  law. 
And  you  are  further  directed  and  commanded  to  bring  with  you  the 
following  papers  and  documents  now  in  your  possession  or  under  your 
control,  viz.:  A  certain  letter  written  by  Richard  Roe  and  received  by 
you  on  or  about  the  10th  day  of  January,  1908,  in  reference  to  the  sale  of 
some  of  his  property  in  SpoJcane. 

Witness  my  hand  and  seal  this  4th  day  of  December,  A.  D.  1910. 

[Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington,  residing  at  Seattle. 

[The  words  in  italics  must  be  changed  to  suit  the  occasion.] 

The  subpoenas  may  be  served  by  the  sheriff  or  deputy 
sheriff  or  by  "any  suitable  person  over  eighteen  years  of 
age  by  exhibiting  and  reading  it  to  the  witness,  or  by  giv- 
ing him  a  copy  thereof,  or  by  leaving  such  copy  at  the 
place  of  his  abode."  If  the  service  is  not  made  by  an 
officer  authorized  to  serve  process,  proof  of  service  must  be 
made  by  affidavit,  [e] 

When  the  officer  or  "suitable  person"  serves  the  sub- 
poena he  must  also  pay  or  tender  to  the  witness,  pro- 
vided the  witness  demands  his  fees  at  the  time  of  the  service 
of  the  subpoena,  if  it  is  a  civil  action  or  proceeding,  two 
dollars,  plus  mileage  at  twenty  cents  for  each  mile  of  the  dis- 
tance by  the  usual  route  between  the  home  of  the  witness 
and  the  place  where  his  deposition  is  to  be  taken,  [b]  [h] 
The  subpoena  must  not  be  served  on  Sunday,  [i]  It  may  be 
served  by  telegraph,  [ff ] 

[a]  "Any  witness  may  be  subpoenaed  and  compelled,  by  any  officer 
authorized  to  take  depositions,  to  appear  and  give  his  deposition  at 
any  place  within  twenty  miles  of  the  abode  of  such  witness,  in  like 
manner  as  he  may  be  subpoenaed  and  compelled  to  attend  as  a  witness 
in  any  court,  and  he  shall  suffer  the  same  penalties  for  a  failure  to 
attend  as  prescribed  in  section  1220":  Laws  1891,  p.  35,  §  9;  2  H.  C, 
§  1670;  Bal.  Code,  §  6021;  1  Rem.  &  Bal.  Code,  §  1235. 

[b]  "No  person  shall  be  obliged  to  attend  as  a  witness  before  any 
court  of  record,  judge,  justice  of  the  peace,  commissioner,  referee,  or 
other  officer,  in  any  civil  action  or  proceeding  out  of  the  county  in 
which  he  resides,  unless  his  residence  be  within  twenty  miles  of  such 

13 


194  LAW   FOR  NOTARIES  PUBLIC. 

court,  judge,  justice  of  the  peace,  commissioner,  referee,  or  other 
officer;  and  no  person  shall  be  obliged  to  attend  as  a  witness  in  any- 
civil  action  or  proceeding  in  any  justice's  court,  unless  his  residence 
be  within  twenty  miles  of  such  court,  whether  within  the  county  or 
not.  Nor  shall  any  person  be  compelled  to  attend  as  a  witness  in  any 
civil  action  or  proceeding,  unless  the, fees  be  paid  or  tendered  to  him 
which  are  allowed  by  law  for  one  day's  attendance  as  a  witness,  and 
for  traveling  to  and  returning  from  the  place  where  he  is  required  to 
attend,  provided  such  fees  be  demanded  by  him  at  the  time  of  service 
of  the  subpoena":  Laws  1891,  p.  33,  §  2;  2  H.  C,  §  1650;  Bal.  Code, 
§  5995;  1  Rem.  &  Bal.  Code,  §  1215. 

[c]  "The  subpoena  may  require  not  only  the  personal  attendance 
of  the  person  to  whom  it  is  directed  at  a  particular  time  and  place  to 
testify  as  a  witness,  but  may  also  require  bim  to  bring  with  him  any 
books,  documents,  or  things  under  his  control;  but  no  public  officer 
or  person  having  the  possession  or  control  of  public  records  or  papers 
which  by  law  are  required  to  be  kept  in  any  particular  office  or  place 
shall  be  compelled  to  produce  the  same  in  any  court":  Laws  1854,  p. 
188,  §  296;  Code  1881,  §  394;  2  H.  C,  §  1651;  BaL  Code,  §  5996;  1 
Rem.  &  Bal.  Code,  §  1216. 

[d]  "The  subpoena  shall  be  issued  as  follows: 
"1 

"2.  To  require  attendance  out  of  such  court  before  a  judge,  justice 
of  the  peace,  commissioner,  referee  or  other  officer  authorized  to  ad- 
minister oaths  or  to  take  testimony  in  any  matter  under  the  laws  of 
this  stat€,  it  shall  be  issued  by  such  judge,  justice  of  the  peace,  com- 
missioner, referee  or  other  officer  before  whom  the  attendance  is 
required; 

"3.  To  require  attendance  before  a  commissioner  appointed  to  take 
testimony  by  a  court  of  any  other  state,  territory  or  county  it  may 
be  issued  by  any  judge  or  justice  of  the  peace  in  places  within  their 
respective  jurisdiction":  Laws  1895,  p.  189,  §  1;  Bal.  Code,  §  5997; 
1  Rem.  &  Bal.  Code,  §  1217. 

[e]  "Such  subpoena  may  be  served  by  any  suitable  person  over 
eighteen  years  of  age,  by  exhibiting  and  reading  it  to  the  witness,  or 
by  giving  him  a  copy  thereof,  or  by  leaving  such  copy  at  the  place  of 
his  abode.  When  service  is  made  by  any  other  person  than  an  officer 
authorized  to  serve  process,  proof  of  service  shall  be  made  by  affi- 
davit": Laws  1869,  p.  165,  §  391;  Code  1881,  §  396;  2  H.  C,  §  1653; 
Bal.  Code,  §  5997;  1  Rem.  &  Bal.  Code,  §  1217. 

[f]  "A  person  present  in  court,  or  before  a  judicial  officer,  may  be 
required  to  testify  in  the  same  manner  as  if  he  were  in  attendance 
upon  a  subpoena  issued  by  such  court  or  officer":  Laws  1854,  p.  188, 
§  299;  Code  1881,  §  397;  2  H.  C,  §  1654;  Bal.  Code,  §  5999;  1  Rem.  & 
Bal.  Code,  §  1219. 


DEPOSITIONS.  195 

[ff]  "Any  writ  or  order  in  any  civil  suit  or  proceeding,  and  all  the 
papers  requiring  service,  may  be  transmitted  by  telegraph  for  service 
in  any  place,  and  the  telegraphic  copy  of  such  writ  or  order  or  paper 
90  transmitted  may  be  served  or  executed  by  the  officer  or  person  to 
whom  it  is  sent  for  that  purpose,  and  returned  by  him,  if  any  return 
be  requisite,  in  the  same  manner,  and  with  the  same  force  and  effect 
in  all  respects,  as  the  original  thereof  might  be,  if  delivered  to  him, 
and  the  officer  or  person  serving  or  executing  the  same  shall  have  the 
same  authority,  and  be  subject  to  the  same  liabilities,  as  if  the  copy 
were  the  original.  The  original,  when  a  writ  or  order,  shall  also  be 
filed  in  the  court  from  which  it  was  issued,  and  a  certified  copy 
thereof  shall  be  preserved  in  the  telegraph  office  from  which  it  was 
sent;  in  sending  it,  either  the  original  or  certified  copy  may  be  used 
by  the  operator  for  that  purpose":  Laws  1866,  p.  69,  §  17;  Code  1881, 
§  2358;  1  H.  C,  §  1558;  Bal.  Ctode,  §  4898;  1  Kem.  &  Bal.  Code,  §  254. 

[g]  In  the  Matter  of  the  Petition  of  N.  W.  Bolster  (Wash.),  110 
Pac.  547,  August,  1910,  Fullerton,  J.  In  this  case  the  superior  court 
of  the  state  of  California  issued  a  commission,  in  a  cause  pending 
therein,  authorizing  "N.  W.  Bolster  of  Seattle,  Wash.,  to  take  the 
depositions  of  E.  J.  Mathews  and  T.  A.  Davies,  president  and  vice- 
president,  respectively,  of  a  corporation  known  as  the  John  J.  Sesnon 
Company,  and  to  require  them  to  produce  such  books  and  papers  of 
the  corporation  as  should  be  in  their  possession  or  under  their  control, 
that  the  same  might  be  examined  touching  the  matters  at  issue  in 
the  cause  mentioned."  The  notary  caused  a  subpoena  to  be  issued  to 
the  witness  E.  J.  Mathews  to  appear  and  bring  the  books.  The  wit- 
ness appeared,  but  refused  to  bring  the  books.  The  notary  then 
applied  to  the  superior  court  of  King  county,  asking  the  court  to  re- 
quire the  witness  to  attend  before  him  with  the  documents.  The 
superior  court,  after  a  hearing,  however,  refused,  on  the  ground  that 
the  documents  sought  were  "trade  secrets."  The  notary  appealed  to 
the  supreme  court,  and  Judge  Fullerton  there  decided,  not  only  the 
question  of  "trade  secrets,"  but  also  the  contention  as  to  whether  the 
superior  court  had  the  authority  to  compel  the  production  of  the 
books  under  the  Washington  statute.  The  court  held  that  the  witness 
must  appear  and  produce  the  books. 

[h]  "Witnesses  shall  receive  for  each  day's  attendance  in  all  courts 
of  this  state,  besides  mileage  at  ten  cents  per  mile  each  way,  two 
dollars":  Laws  1907,  p.  88,  §  1;  1  Bern.  &  Bal.  Code,  §  497. 

[i]  "Every  person  who  shall  serve  any  legal  process  on  the  Sabbath 
day,  except  in  case  of  a  breach,  or  apprehended  breach,  of  the  peace, 
or  when  sued  out  for  the  apprehension  of  a  person  charged  with 
crime,  or  where  such  service  is  expressly  authorized  by  statute,  shall 
be  guilty  of  a  misdemeanor":  Laws  1909,  p.  964,  §  245;  1  Eem.  &  Bal. 
Code,  §  2497. 


196  LAW  FOB  NOTARIES  PUBLIC. 

§  109.  Witnesses:  Refusal'  ta  Attend:  Procedure. — "WTien 
a  proper  service  of  subpoena,  as  stated  in  the  preceding  sec- 
tion, has  been  made  and  the  witness  refuses  to  attend,  or  if 
he  attends,  refuses  to  testify  or  to  produce  certain  books  or 
documents  called  for  by  the  notary,  it  is  then  the  notary's 
duty  to  report  to  the  superior  court  in  and  for  the  county  in 
which  the  witness  resides,  or  is  found,  by  petition.  His  peti- 
tion should  set  forth  that  the  necessary  steps  were  taken,  fol- 
lowing the  facts  as  stated  in  section  1237  of  Remington  and 
Ballinger's  Code,  and  that  the  witness  has  failed  and  refused 
to  attend  and  testify  before  such  officer,  in  the  cause  men- 
tioned in  the  notice  and  subpoena ;  and  ask  the  court  for  an 
order  compelling  the  witness  to  attend  and  testify  before  such 
ofiBeer.[a]    [b] 

The  court,  upon  the  petition  of  the  notary  public  and  the 
payment  of  the  regular  docket  fee  of  four  dollars  ($4),  will 
enter  an  order  directing  the  witness  to  appear  before  the 
notary  at  a  time  and  place  which  will  be  fixed  in  the  order 
and  there  to  give  his  testimony  in  such  case.  Upon  obtain- 
ing this  order  from  the  court,  a  copy  of  it  must  be  served 
upon  the  witness  in  the  same  manner  that  summons  and  com- 
plaints are  now  served.  If  the  witness  then  fails  or  refuses 
to  obey  the  order  of  the  court  he  will  be  guilty  of  contempt 
of  court,  [c]  [d]  If  the  witness  cannot  be  served  personally 
or  by  leaving  a  copy  of  the  court  order  at  the  house  of  his 
usual  abode  with  some  person  of  suitable  age  and  discretion 
then  resident  therein,  it  will  be  necessary  for  the  notary  to 
examine  the  law  on  the  manner  of  service  of  a  summons  as 
set  forth  in  section  226  of  Remington  and  Ballinger's  Code. 

A  very  interesting  question  may  arise  at  this  point  of  the 
procedure  by  reason  of  the  wording  of  the  law  governing 
notaries  and  the  wording  of  the  law  just  referred  to  and  set 
out  in  full  in  note  [a].  The  law  under  which  a  notary  has 
power  to  take  depositions  reads,  "Every  duly  qualified  no- 
tary public  is  authorized  in  any  county  in  this  state  to  take 
depositions,"  note  [b] ,  section  92.  Whether  this  authorizes 
him  to  take  depositions  to  be  used  in  another  state  has  never 
been  decided.  As  at  common  law  a  notary  has  no  power  to 
take  depositions,  it  is  necessary  for  him  to  be  given  the  right 


DEPOSITIONS.  197 

under  the  statute.*  In  a  number  of  states  the  law  as  to 
depositions  taken  in  foreign  states  specifies  that  the  depo- 
sitions must  be  taken  by  an  officer  given  that  power  by  the 
home  state  and  also  that  the  officer  of  the  foreign  state  must 
be  authorized  by  the  laws  of  his  state  to  take  depositions  in 
his  state  to  be  used  in  foreign  states.^  This  question  does 
not  become  important  to  a  Washington  notary  until  it  be- 
comes necessary  for  him  to  compel  a  witness  to  appear  before 
him  to  give  his  testimony  to  be  sent  to  another  state.  It 
then  becomes  necessary  to  construe  the  statute  as  it  is  set 
out  in  note  [a].  Three  possible  interpretations  of  note  [a] 
are  set  forth  in  note  [b].  This  law  as  set  out  in  note  [a] 
was,  without  doubt,  passed  to  give  the  superior  courts 
power  "to  compel  attendance  of  witnesses."  The  ques- 
tion which  becomes  of  interest  to  the  notary,  remember- 
ing that  the  law  under  which  he  gets  his  authority  to  take 
depositions  reads:  "Every  ....  notary  public  ....  is 
authorized  ....  to  take  depositions,"  is,  Does  the  law  as 
set  out  in  note  [a]  mean  "The  superior  court  shall  have 
power  to  compel  the  attendance  of  witnesses,  within  this 
state,  before  notaries  public  "  ?  Or  does  it  mean  '  *  The  superior 
court  shall  have  power  to  compel  the  attendance  of  wit- 
nesses, within  this  state,  before  notaries  public,  authorized 
by  the  laws  of  this  state  to  take  depositions,  etc."?  If  the 
latter  is  the  true  interpretation,  has  a  notary  in  Washington 
that  power?  In  other  words,  has  a  Washington  notary  the 
power  to  take  depositions  in  Washington  to  be  used  in  Ver- 
mont or  Indiana? 

[a]  "The  superior  court  shall  have  power  to  compel  the  attendance 
of  witnesses,  within  this  state,  before  notaries  public,  justices  of  the 

1  Midland  Steel  Co.  v.  Citizens'  615;  Biencourt  v.  Parker,  27  Tex. 
National  Bank,  34  Ind.  App.  107,  558;  Carter  v.  Ewing,  1  Tenn.  Ch. 
72  N.  E.  290;  McCann  v.  Beach,  2  212,  holding  that  only  domestic 
Cal.  32;  Burtt  v.  Pyle,  89  Ind.  notaries  may  take  depositions  for 
398;  McCormick  v.  Largey,  1  use  in  Tennessee. 
Mont.  158,  holding  that  a  notary  2  Midland  Steel  Co.  v.  Citizens' 
of  another  state  had  no  power  to  National  Bank,  34  Ind.  App.  107, 
take  a  deposition  to  be  used  in  72  N.  E.  290;  Patterson  v.  Pat- 
Montana;  In  re  Butler,  76  Neb.  terson,  1  D.  Chip.  (Vt.)  200; 
267,  107  N.  W.  572;  Phelps  v.  Dumont  v.  McCracken,  6  Blackf. 
City   of   Panama,   1   Wash.   Ter.  (Ind.)   355. 


198  LAW  FOR  NOTARIES  PUBLIC. 

peace  or  any  other  person  authorized  by  the  laws  of  this  state  to 
take  depositions  in  causes  pending  in  any  court  of  this  state,  or  in 
any  court  of  any  other  state,  or  in  any  court  of  the  United  States,  or 
in  any  court  of  a  foreign  country":  Laws  1901,  p.  23,  §  1;  1  Eem.  & 
Bal.  Code,  §  1236. 

[b]  The  superior  court  shall  have  power  to  compel  the  attendance 
of  witnesses,  within  this  state,  before 

(1)  notaries  public, 

(2)  justices  of  the  peace 

(3)  or  any  other  person  authorized  by  the  laws  of  this  state 
to  take  depositions 


in  causes  pending  in  any  court  of  this  state,  or  in  any  court  of  any 
other  state,  or  in  any  court. of  the  United  States,  or  in  any  court  of  a 
foreign  country. 

The  superior  court  shall  have  the  power  to  compel  the  attendance 
of  witnesses,  within  this  state,  before 

(1)  notaries  public, 

(2)  justices  of  the  peace 

(3)  or  any  other  person  authorized  by  the  laws  of  this  state  to 
take  depositions  in  causes  pending  in  any  court  of  this 
state,  or  in  any  court  of  any  other  state,  or  in  any  court 
of  the  United  States,  or  in  any  court  of  a  foreign  country. 


The  superior  court  shall  have  the  power  to  compel  the  attendance  of 
witnesses,  within  this  state,  before 
(1)  notaries  public. 


(2)  justices  of  the  peace 

(3)  or  any  other  person 


authorized  by  the  laws  of  this  state  to  take  depositions  in  causes  pend- 
ing in  any  court  of  this  state,  or  in  any  court  of  any  other  state,  or 
in  any  court  of  the  United  States,  or  in  any  court  of  a  foreign  country. 

[c]  "The  oflficer  before  whom  the  deposition  is  to  be  taken  in  case 
of  the  refusal  of  any  witness  to  attend  or  testify  shall  report  to  the 
superior  court  in  and  for  the  county  in  which  the  witness  resides,  or 
is  found,  by  petition,  that  due  notice  has  been  given  of  the  time  and 
place  of  taking  the  depositions  and  that  the  witness  has  been  sum- 
moned in  the  same  manner  that  witnesses  are  now  summoned  to 
appear  and  testify  in  the  superior  court  of  this  state;  and  the  fees 
and  mileage  of  the  witness  has  been  paid,  or  tendered  to  the  witness, 
for  his  attendance  and  testimony,  and  that  the  witness  has  failed 
and  refused  to  attend  or  testify  before  such  officer,  in  the  cause 
mentioned  in  the  notice  and  the  subpoena;  and  ask  an  order  of  the 
court  compelling  the  witness  to  attend  and  testify  before  such  officer"; 
Laws  1901,  p.  23,  §  2;  1  Rem.  &  Bal.  Code,  §  1237. 

"The  court,  upon  the  petition  of  the  officers  and  the  payment  of 
the  regular   docket  fee   of   four   dollars    ($4),  shall   enter  an  order 


DEPOSITIONS.  199 

directing  the  witness  to  appear  before  the  officer  making  the  report, 
at  a  time  and  place  to  be  fixed  by  the  court  in  such  order,  and  then 
and  there  give  his  testimony  in  such  case.  A  copy  of  which  order 
shall  be  served  upon  the  witness  in  the  same  manner  that  summons 
and  complaints  are  now  served;  and  on  failure  or  refusal  of  the 
witness  to  obey  such  order,  such  witness  shall  be  dealt  with  as  for 
contempt":  Laws  1901,  p.  24,  §  3;  1  Eem.  &  Bal.  Code,  §  1238. 

[d]  "In  all  cases,  except  when  service  is  made  by  publication,  as 
hereinafter  provided,  the  summons  shall  be  served  by  the  sheriff 
of  the  county  wherein  the  service  is  made  or  by  his  deputy,  or  by 
any  person  over  twenty-one  years  of  age,  who  is  competent  to  be  a 
witness  in  the  action,  other  than  the  plaintiff":  Laws  1893,  p.  408, 
§6;  Bal.  Code,  §4874;  1  Eem.  &  Bal.  Code,  §225. 

§  110.  Witnesses:  Refusal  to  Attend:  Liability. — ^Not 
only  does  the  witness  who  has  been  legally  subpoenaed  lay 
himself  open  to  contempt  proceedings  in  his  refusal  to  tes- 
tify, but  also,  if  he  is  without  reasonable  excuse,  is  liable  to 
the  aggrieved  party  for  all  damages  occasioned  by  such 
failure.  The  aggrieved  party  may  recover  said  damages  in 
a  civil  suit,  [a] 

[a]  "If  any  person  duly  served  with  a  subpoena,  and  obliged  to 
attend  as  a  witness,  shall  fail  to  do  so,  without  any  reasonable  ex- 
cuse, he  shall  be  liable  to  the  aggrieved  party  for  all  damages 
occasioned  by  such  failure,  to  be  recovered  in  a  civil  action.  Such 
failure  to  attend  as  required  by  the  subpoena  shall  also  be  con- 
sidered a  contempt,  and,  upon  due  proof,  the  witness  may  be  pun- 
ished by  a  fine  not  exceeding  fifty  dollars,  and  stand  committed 
until  said  fine  and  costs  are  paid,  or  until  discharged  by  due  course 
of  law":  Laws  1854,  p.  188,  §§300,  301;  Code  1881,  §§398,  399;  2 
H.  C,  §  1655;  Bal.  Code,  §  6000;  1  Eem.  &  Bal.  Code,  §  1220. 

§  111.  Depositions:  How  Taken. — When  on  the  day  set 
in  the  subpoena  the  witness  appears  before  the  notary  at  the 
time^  and  place  ^  noticed  ready  to  testify,  it  is  then  the  duty 

1  The     deposition     should     be  2  The     deposition     should     be 

taken  at  the  time  specified  in  the  taken    at    the   place   specified    in 

notice   or  commission   and  at  no  the  notice  or  commission  and  at 

other:  Johnson  v.  Perry,  54  Vt.  no  other:  Beach  v.  Workman,  20 

459;   Jordan  v.   Hazard,   10  Ala.  N.   H.  379;   Wannock  v.  Macon, 

221;     Veach   v.   Bailiff,    5    Har.  53  Ga.  162;   Wixora  v.  Stephens, 

(Del.)   379;  Young  v.  Mackall,  4  17  Mich.  518,  97  Am.  Dec.  205. 
Md.  362. 


200  LAW  FOB  NOTARIES  PUBLIC. 

of  the  notary  to  swear  (or  affirm)  the  witness,  that  he  "will 
testify  to  the  truth,  the  whole  truth,  and  nothing  but  the 
truth"  in  the  matter  or  proceeding  set  forth  in  the  "com- 
mission" or  "notice,"^[a]  If  the  deposition  is  to  be  taken 
by  interrogatories  the  notary  will  then  put  the  questions  as 
set  forth  in  the  interrogatories,  one  at  a  time,  to  the  witness. 
As  the  witness  answers  his  testimony  must  be  written  by  the 
notary  himself  or  by  some  disinterested  person  in  the  pres- 
ence and  under  the  direction  of  the  notary.  If  the  witness 
desires,  he  may  write  down  the  answers  to  the  interroga- 
tories himself.  As  to  the  form  of  the  deposition,  it  may  be 
either  answers  to  each  question  or  may  be  in  the  narrative 
form,  or  partly  in  either  form,  as  either  party  present  at 
the  examination  shall  require. 

When  the  deposition  is  taken  by  question  and  answer,  the 
notary  must  first  write  down  the  question  and  then  the  an- 
swer, as  nearly  as  he  can,  in  the  language  of  the  witness ;  but 
when  the  deposition  is  read  to  the  witness  previous  to  sign- 
ing it,  he  shall  be  permitted  to  amend  his  answer  to  any 
question,  or  any  part  of  his  deposition.  Any  amendment 
made,  however,  unless  both  parties  shall  otherwise  agree, 
shall  not  be  made  by  way  of  interlining  or  erasing,  but  shall 
be  added  at  the  end  of  the  deposition  under  the  title 
"Amendment  by  the  Witness,"  and  such  amendment  shall 
intelligibly  refer  to  the  part  so  amended. 

It  shall  be  the  duty  of  the  notary  to  ask  the  witness  every 
question  proposed  by  either  party.*    If  the  parties  attend  at 

8  The  oath    must    be  publicly  administered  before    the    deposi- 

administered:  Halleran   v.   Field,  tion  is  taken,  as  the  statute  must 

23    Wend.    (N.   Y.)    38;    Ford   v.  be    strictly    followed:   Bacon    v. 

Cheever,  105  Mich.  679,  63  N.  W.  Bacon,  33   Wis.   147;    Putnam  v. 

975.  Larimore,    Wright     (Ohio),    746; 

The   statutory    oath    must    be  Armstrong  v.  Burrows,   6   Watts 

strictly      followed:      Ballard     v.  (Pa.),  266. 

Perry,    28    Tex.    347;    9    Am.    &  *  Rooker    v.    Rooker,    83    Ind. 

Eng.    Ency.    of   Law,    2d    ed.,   p.  226;   Horseman  v.  Todhunter,  12 

331;  New  Jersey  Express  Co.  v.  Iowa,  230;  Hellman  v,  Wright,  1 

Nichols,  33  N.  J.  L.  434,  97  Am.  Wyo.  190;  Attwell  v.  Lynch,  39 

Dec.  722;  Call  v.  Perkins,  68  Me.  Mo.  519.    If  the  witness  does  not 

158;  13  Cyc.  Law  &  Proc,  p.  941;  understand  English,  an  interpre- 

in  Washington  the  oath  must  be  ter  should  be  employed.     The  in- 


DEPOSITIONS.  201 

the  examination  and  have  any  objection  to  the  form  of  a 
question,  such  objection  must  be  stated,  whereupon  the 
notary  must  note  all  objections  to  the  form  of  any  interrog- 
atory. When  "any  interrogatory  is  objected  to  on  account  of 
form,  unless  the  form  is  amended  and  the  objection  waived, 
he  shall  write  after  the  question,  and  before  the  answer, 
"objected  to." 

If  any  witness  declines  to  answer  a  question  on  the  ground 
that  it  will  tend  to  criminate  himself,  that  fact  shall  be  noted 
after  the  question,  if  written  down,  [b]    [e] 

[a]  Phelps  V.  S.  S.  City  of  Panama,  1  Wash.  Ter.  615,  July,  1877, 
Chief  Justice  Lewis:  A  deposition  taken  under  the  statutes  of  the 
United  States  must  be  taken  in  strict  conformity  to  the  statute.  "The 
act  requires  the  witness  shall  be  cautioned  as  well  as  sworn.  It  does 
not  appear  that  this  was  here  done."  [The  state  law  does  not  de- 
mand this.] 

[b]  "The  deposition  shall  be  written  by  the  officer  taking  the 
same,  or  by  the  witness,  or  by  some  disinterested  person,  in  the  pres- 
ence and  under  the  direction  of  such  officer.  When  completed,  it 
shall  be  carefully  read  to  or  by  the  witness,  corrected  if  desired, 
and  subscribed  by  him.  If  taken  upon  notice,  it  shall  be  certified  by 
the  officer  substantially  as  follows: — 

POEM  LYX 
State  of  Washington, 
County,  of  ,  — ss. 

I,  A  B,  justice  of  the  peace  in  and  for  said  county  (or  judge, 
clerk,  etc.,  as  the  case  may  be),  do  hereby  certify  that  the  above, 
deposition  was  taken  before  me,  and  reduced  to  writing  by  myself 

(or  witness,  as  the  case  may  be),  at  ,  in  said  county,  on  the 

day   of  ,   18 ,   at  o'clock,   in   pursuance   of 

notice  hereto  annexed;  that  the  above-named  witness,  before  exam- 
ination, was  sworn  (or  affirmed)  to  testify  the  truth,  the  whole  truth, 
and  nothing  but  the  truth,  and  that  the  said  deposition  was  care- 
fully read  to  (or  by)  said  witness,  and  then  subscribed  by  him. 

Pated  at ,  the day  of ,  18 . 

A  B., 
Justice  of  the  Peace. 

terpreter  should  be  sworn  before  the  preter:  Euberweg    v.    La     Com- 

deposition  is  taken  and  the  deposi-  pagnie  Generale  Transatlantique, 

tion  should  show  these  facts.     The  35  Fed.  530;  People  v.  Dowdigan, 

answers   must   be    taken    down   as  67  Mich.  95,  38  N.  W.  920. 
translated    by    the    sworn   inter- 


202  LAW  FOR  NOTARIES  PUBLIC. 

If  the  deposition  be  taken  upon  a  commission,  the  commissioner 
shall  certify  it  in  substantially  the  same  manner,  and  annex  to  it 
the  commission  and  interrogatories":  Laws  1891,  p.  36,  §  12;  2  H.  C, 
§  1674;  Bal.  Code,  §  6025;  1  Eem.  &  Bal.  Code,  §  1242. 

[c]  "Such  depositions  may  be  used  by  either  party  upon  the  trial, 
or  other  proceeding,  against  any  party  giving  or  receiving  the  notice, 
subject  to  all  legal  exceptions  to  the  competency  or  credibility  of 
the  witness,  or  the  manner  of  taking  the  deposition.  But  if  the 
parties  attend  at  the  examination,  no  objection  to  the  form  of  an 
interrogatory  shall  be  made  at  the  trial,  unless  the  same  was  taken 
at  the  time  of  the  examination.  It  shall  be  the  duty  of  the  person 
taking  the  deposition  to  propound  to  the  witness  every  question  pro- 
posed by  either  party,  and  to  note  all  objections  to  the  form  of  any 
interrogatory,  and  when  any  interrogatory  is  objected  to  on  account 
of  form,  unless  the  form  is  amended  and  the  objection  waived,  he 
shall  write  after  the  question,  and  before  the  answer,  the  words 
'objected  to';  and  when  any  witness  declines  to  answer  a  question 
on  the  ground  that  it  will  tend  to  criminate  himself,  that  fact  shall 
also  be  noted  after  the  question,  if  written  down.  The  deposition 
may  be  taken  in  the  form  of  a  narrative,  or  by  question  and  an- 
swer, or  partly  in  either  form,  as  either  party  present  at  the  exam- 
ination shall  require.  When  taken  by  question  and  answer,  the 
officer  shall  first  write  down  the  question  and  then  the  answ£r,  as 
nearly  as  may  be,  in  the  language  of  the  witness;  but  when  the 
deposition  is  read  to  the  witness  previous  to  signing  it,  he  shall  be 
permitted  to  amend  his  answer  to  any  question,  or  any  part  of  his 
deposition;  such  amendment,  however,  unless  both  parties  shall  other- 
wise agree,  shall  not  be  made  by  way  of  interlining  or  erasing,  but 
shall  be  added  at  the  end  of  the  deposition  under  the  title  'amend- 
ment by  the  witness,'  and  such  amendment  shall  intelligibly  refer 
to  the  part  so  amended":  Laws  1854,  p.  191,  §317;  Code  1881,  §418; 
2  H.  C,  §  1676;  Bal.  Code,  §  6027;  1  Eem.  &  Bal.  Code,  §  1244. 

§  112.  Depositions:  How  Taken:  How  Returned. — After 
all  the  questions  set  forth  in  the  interrogatories  have  been 
asked  and  the  answers  written  down;  or,  if  the  parties  are 
present  and  the  questions  are  oral,  after  both  parties  have 
asked  all  the  questions  they  desire  and  the  answers  have 
been  written  down,  then  it  is  the  duty  of  the  notary  to  have 
the  witness  read  his  testimony  or  have  it  read  to  him.  If  he 
desires  to  make  any  corrections,  they  should  then  be  made, 
after  which  the  witness  should  subscribe  his  name.  It  is  a 
very  good  practice  to  have  the  witness  sign  his  name  to  each 
page  of  his  testimony. 


DEPOSITIONS.  203 

If  the  deposition  was  taken  "upon  notice"  or  "by  com- 
mission" the  notary  should  attach  to  it  a  certificate  that  he 
has  carried  out  the  commission  or  taken  the  testimony  ac- 
cording to  law. 

Here  is  a  good  form  for  the  whole  deposition  to  follow: 
FORM  LVI. 


State 

i  of  Washington, 

Superior  Court  of  Spokane  County. 

BicJiard  Eoe, 

Plaintiff, 

V8. 

^                         Depositions. 

John  Stiles, 

Defendant. 

State  of  Washington, 
County  of  King, — ss. 

Be  it  remembered  that  pursuant  to  the  notice  of  taking  deposition 
hereunto  attached,  and  on  the  10th  day  of  December,  1910,  at  304 
Central  Building,  corner  of  9th  Avenue  and  Marion  Street,  in  the  dtp 
of  Seattle,  County  of  King,  state  of  Washington,  before  me,  John  Doe, 
a  notary  public  duly  appointed,  commissioned  and  sworn,  personally 
appeared  William  Stiles,  a  witness  produced  on  behalf  of  the  plaintiff 
in  the  above-entitled  action,  now  pending  in  said  court,  who,  being 
by  me  first  duly  sworn  to  tell  the  truth,  the  whole  truth,  and  nothing 
but  the  truth,  testified  as  follows:  (Here  insert  the  testimony  of  the 
witnesses.) 

The  plaintiff  was  represented  by  Mr.  . 

The  defendant  was  represented  by  Mr.  , 


State  of  Washington, 
County  of  King, — ss. 

I,  John  Doe,  notary  public  for  the  state  of  Washington,  do  hereby 
certify  that  the  above  deposition  was  taken  before  me,  and  reduced  to 
writing  by  myself  at  Seattle,  in  said  county,  on  the  10th  day  of  Decern^ 
her,  1910,  at  9  o'clock,  in  pursuance  of  the  notice  hereto  annexed;  and 
that  the  above-named  witness,  before  examination,  was  sworn  to  testify 
the  truth,  the  whole  truth,  and  nothing  but  the  truth,  and  that  the  said 
deposition  was  carefully  read  to  said  witness,  and  then  subscribed  by 
him. 

Dated  at  Seattle,  the  10th  day  of  December,  1910. 

[Seal]  JOHN   DOB, 

Notary  Public  in  and  for  the  State  of  Washington  residing  in  Seattle. 

[The  words  in  italics  must  be  changed  to  suit  the  occasion.] 


204  LAW  FOB  NOTAEIES  PUBLIC. 

Instead  of  "Notice  of  Taking  Depositions,"  if  by  stipula- 
tion, insert  "Stipulation";  if  by  commission,  insert  "Com- 
mission." 

If  the  deposition  was  taken  down  stenographically  and 
typewritten  by  the  stenographer  of  the  notary,  in  place  of 
the  words,  "and  reduced  to  writing  by  myself,"  insert  the 
following:  "and  having  been  first  taken  down  in  shorthand 
by  a  stenographer  was  typewritten  by  the  said  stenographer, 
a  disinterested  person,  in  my  presence  and  under  my  direc- 
tion"; or  if  the  witness  wrote  out  his  testimony,  insert  the 
words,  "by  the  witness." 

If  the  deposition  was  taken  by  virtue  of  a  commission  with 
interrogatories  attached,  the  commission  and  interrogatories 
should  be  returned  with  the  deposition  and  certificate.^ [a] 

After  the  above  directions  have  been  carefully  carried  out 
the  deposition  together  with  the  "notice"  or  "commission" 
and  interrogatories  should  all  be  inclosed  in  a  sealed  en- 
velope by  the  notary  and  directed  to  the  clerk  of  the  court, 
arbitrators,  referee,  justice  of  the  peace  or  secretary  of  the 
commission  before  whom  the  action  is  pending,  or  to  such 
persons  a«  the  parties,  in  writing,  may  agree  upon. 

Across  the  envelope  or  package  after  all  the  papers  have 
been  sealed  up  together  should  be  written  the  following: 

1  A  statement  of  facts  in  writ-  and  which  is  not  accompanied  by 

ing,  without  date  or  venue,  pur-  a  certificate  of  a  competent  offi- 

porting  to  have  been  signed  by  a  cial,  from  which  compliance  with 

witness,   but   giving   neither   age  any    of    the    requisites   for    the 

nor  residence    of    such    witness,  taking  of  depositions  in  judicial 

which  statement  is  not  'shown  to  proceedings    can    be    inferred,    is 

have  been  made  under  oath,  nor  not     a     deposition,    although     so 

the  oath    waived,    nor    to    have  labeled  and  filed  in  a  suit  pend- 

been   taken   on  notice  or  in  the  ing  in  court:  Lutcher    v.    United 

presence  of  parties,  nor  to  have  States,  72  Fed.  968,  19  C.  C.  A. 

been  taken  before  any  official  au-  259. 
thorized    to     administer     oaths, 


DEPOSITIONS.  205 

FOEM  LVIL 

State  of  Washington. 

Superior  Court  of  Spokane  County, 


Eichard  Eoe, 

vs. 
John  Stiles, 


Plaintiff, 


>■ 


Defendant, 

J 


Deposition  of  William  Stiles,  a  witness  on  behalf  of  plaintiff,  Eich- 
ard Eoe,  taken  before  John  Doe,  a  notary  public,  the  10th  day  of 
December,  1919. 

Fees:  $ 

$  . 


Paid  \ij  Eichard  Eoe,  or  Unpaid. 

It  should  then  either  be  delivered  personally  to  the  clerk 
of  the  court  or  other  person,  or  transmitted  through  the  mail 
by  registered  letter,  or  be  sent  by  some  private  person,  [b] 
If  the  commission  contains  directions  as  to  how  the  deposi- 
tion is  to  be  returned,  the  notary  must  carry  out  those  direc- 
tions to  the  minutest  detail. 

[a]  Hobart  v,  Jones,  5  Wash.  385,  31  Pae.  879,  December,  1892, 
Dunbar,  J.:  "We  think  the  objections  to  the  certificate  and  signature, 
or  want  of  signature,  of  the  commissioner,  are  equally  untenable.  The 
caption  is:  'Deposition  of  F.  D.  Dibble,  taken  before  F.  N.  Hendrix, 
at  ....  on  the  27th  day  of  April,  1892,  pursuant  to  the  annexed  ' 
commission  to  take  testimony.  And  while  the  certificate  is  signed: 
*F.  N.  Hendrix,  commissioner  and  notary  public,'  it  might  just  as 
forcibly  be  held  that  the  words  'notary  public'  were  descriptive  of  the 
person,  as  the  word  'commissioner,'  but  taking  the  signature  in  con- 
nection with  the  first  part  of  the  certificate,  which  states  that  F.  N. 
Hendrix,  commissioner,  does  hereby  certify,  etc.,  there  is  no  question 
but  that  the  natural  and  logical  conclusion  is  that  F.  N.  Hendrix  was 
the  commissioner.  The  certificate,  therefore,  we  think,  is  a  substantial 
compliance  with  the  requirements  of  the  statute." 

[b]  "The  deposition,  whether  taken  upon  notice  or  upon  a  commis- 
sion, shall  be  inclosed  in  a  sealed  envelope,  by  the  ofScer  taking  the 
same,  and  directed  to  the  clerk  of  the  court,  arbitrators,  referee,  or 
justice  of  the  peace  before  whom  the  action  is  pending,  or  to  such 
persons  as  the  parties,  in  writing,  may  agree  upon,  and  either  deliv- 
ered to  the  clerk  of  the  court  or  other  person,  or  transmitted  through 


206  LAW  FOR  NOTARIES  PUBLIC. 

the  mail  or  by  some  private  person":  Laws  1891,  p.  36,  §  13;  2  H,  C, 
1675;  Bal.  Code,  §  6026;  1  Bern.  &  Bal.  Code,  §  1243. 

§  113.  Depositions:  Attaching  Exhibits. — If  exhibits 
have  been  referred  to  in  any  of  the  testimony  given,  the  ex- 
hibits, if  admitted  in  evidence  or  refused  admission,  should 
be  properly  identified  with  the  name  of  the  case,  the  officer's 
name  and  the  time  and  place  of  taking  the  deposition,  and 
should  be  returned  with  the  deposition.  If  possible,  they 
should  be  attached  to  the  other  papers;  if  not,  they  should 
be  inclosed  under  seal.^ 

The  following  is  an  example  of  how  letters,  etc.,  referred 
to  should  be  identified: 

FORM  LVni. 

state  of  Washington. 
Superior  Coixrt  Spokane  Co. 


Richard  Roe, 

vs. 
John  Stiles, 


Plaintiff, 


Defendant. 


Exhibit  "A." 


JOHN  DOE, 
December  10,  1910. 

1  9  Am.  &  Eng.  Ency.  of  Law,  no  excuse  for  not  exhibiting 
2d  ed.,  p.  337.  The  fact  that  the  them:  Coleman  v.  Colgate,  69 
documents  are  very  voluminous  is      Tex.  88,  6  S.  W.  553. 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  207 


CHAPTER  X. 

PROTESTING   NEGOTIABLE    INSTEUMENTS. 

5  114.  History  of  Bills  and  Notes. 

§  115.  Notary's  Powers  and  Duties  in  the  Protesting  of  Negotiable 

Instnimenta. 

§  116.  Definitions. 

Presentment  fob  Acceptance. 

§  117.  When  Presentment  is  Necessary. 

§  118.  Who  may  Present. 

§  119.  Presentment  to  Whom. 

§  120.  Time  Presentment  Should  be  Made. 

§  121.  Manner  of  Presentment. 

S  122.  Acceptance:  Definition. 

§  123.  Acceptance:   Different  Kinds. 

§  124.  Acceptance:   Qualified:   Need  not  Accept. 

§  125.  How  Acceptance  is  Shown. 

§  126.  Dishonored  by  Nonacceptance. 

§  127.  Effect  of  Dishonor. 

§  128.  Protest  for  Nonacceptance. 

Presentment  fob  Payment. 

§  129.  When  Presentment  Necessary. 

§  130.  Who  may  Present. 

§  131.  Presentment  to  Whom. 

§  132.  Time  Presentment  Should  be  Made. 

§  133.  Place   of   Presentment. 

§  134.  Manner  of  Presentment. 

§  135.  Payment. 

S  136.  Protest  for  Nonpayment. 

Protest  for  Nonacceptancb  ob  Nonpayment. 

§  137.  Protest:  Definition. 

§  138.  Protest:   What  Law  Governs. 

§  139.  Necessity  of  Protest. 

§  140.  Purpose  of  Protest. 

§  141.  Notary  may  Protest. 

§  142.  Place  of  Protest. 

§  143.  Time  Protest  must  be  Made. 

§  144.  Steps  in  Protest. 

§  145.  The  "Noting." 

§  146.  The  Protest. 

§  147.  Form  of  Protest. 

§  148.  Waiver  of  Protest. 


208  LAW  FOB  NOTARIES  PUBLIC. 

Protest  fob  Bettee  Secubitt. 
§  149.    When  Allowed. 

Acceptance  fob  Honor. 

§  150.  When  Allowable. 

§  151.  Form:   Presumption. 

§  152.  When  Acceptor  for  Honor  Liable. 

§  153.  Maturity  of  Bill  Payable  After  Sight.  ' 

§  154.  Time  of  Presentment  to  Acceptor  for  Honor. 

§  155.  Protest  Necessary  When  Acceptor  for  Honor  Dishonors. 

Payment  tor  Honob. 
§  156.    Who  may  Make. 

§  157.     Notary's  Attestation:  Declaration  by  Payer. 
§  158.     Preference  of  Parties  Offering  Payment. 

Notice  of  Dishonob. 

§  159.  Necessity  for  Notice. 

§  160.  Notary  may  Give  Notice. 

§  161.  Notice  to  Whom. 

§  162.  Time  Notice  must  be  Sent 

§  163.  Place  of  Giving  Notice. 

§  164.  Manner  of  Giving  Notice. 

§  165.  Form  of  Notice. 

§  166.  Waiver  of  Notice. 

Befebee  in  Case  of  Need. 
§  167.    Who  Names. 

Records. 
§  168.     Notary's  Records. 
§  169.     Notary's  Records  as  Evidence. 

§  170.    Liability  of  Notary  for  Failure  to  Act  in  Matters  of  Protest. 
§  171.    Criminal  Liability. 

Negotiable  Instruments  Law. 
§  172.     Of  Washington. 

Miscellaneous  Acts. 

§  173.  Legal  Holidays. 

§  174.  Interest. 

§  175.  Bills  of  Lading:  Warehouse  Receipts:  Carriers'  Bills  of  Lading. 

§  176.  Checks,  etc.,  Made  or  Drawn  by  Telegraph — Effect  of. 

§  177.  Instruments  Sent  by  Telegraph. 

§  178.  Seal  and  Revenue  Stamp,  How  Described. 

S  179.  Term  "Telegraphic  Copy"  or  "Duplicate"  Construed, 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  209 

§  114.  History  of  Bills  and  Notes.— The  history  of  bills 
of  exchange  and  promissorj'^  notes,  which  are  now  generally 
classed  under  the  heading  "Negotiable  Instruments,"  begins 
somewhere  in  the  twelfth  or  thirteenth  century.^  "We  know 
that  in  1394  the  city  of  Barcelona,  by  ordinance,  regulated 
the  acceptance  of  bills  of  exchange;  and  that  they  are  men- 
tioned in  a  passage  of  the  Jurist  Baldus  of  the  date  of  1328.^ 
The  first  bank  of  exchange  and  deposit  in  Europe  was  estab- 
lished at  Barcelona  in  1401,  and  it  was  made  to  accommodate 
foreigners  as  well  as  citizens.'  In  England  reference  was 
made  in  the  statute  of  5  Richard  II,  chapter  2  (1382),  to  the 
drawing  of  "foreign  bills."*  It  was  not  until  1698,''  how- 
ever, that  "inland  bills"  were  put  upon  the  same  footing  as 
"foreign  bills,"  except  that  no  protest  is  requisite.  A  few 
years  later,  1705,*  a  statute  was  passed  making  promissory 
notes  payable  to  a  person,  and  to  his  order,  or  bearer,  nego- 
tiable like  "inland  bills,"  according  to  the  custom  of  mer- 
chants. This  latter  statute  was  passed  because  of  the 
decisions  of  Lord  Holt,  that  promissory  notes  were  not 
within  the  operation  of  the  law-merchant,  and  so  were  not 
negotiable.'^  There  is  a  dispute  as  to  that  question,  some 
authorities  holding  that  they  were  negotiable  before  the 
statute.®  The  statute  of  1705  was  superseded  in  1882  by  the 
English  "Bills  of  Exchange  Act,"®  which  was  the  model 
for  our  modern  "Negotiable  Instruments  Law."  Colorado, 
Connecticut,  Florida  and  New  York  were  the  first  to  pass 

1  Cockturn,  C.  J.,  in  Goodwin  (Va.)  233;  Davis  v.  Miller,  14 
V.  Eoberts,  L.  R.  10  Exch.  337.  Gratt.  (Va.)  1. 

2  Kent's  Com.,  p.  '73,  and  note.  '  ^^^^  *"  ^  branch  (U.  S.),  367; 

Goodwin    v,    Eobarts,    L.    E.  10 

3  See  note  2.  Exch.  337;    Dunn    v.    Adams,    1 

4  See  note  2.  ^^*-  ^27,  35  Am.  Dec,  42;  Irvin 

V.  Maury,  1  Mo.  194.     The  ques- 

B  9  &  10  William  HI,  c.  17.  ^.^^  .^  ^^  ^^  practical  importance 

6  3  &  4  Anne,  c.  9.  at  present;  but  it  would  become 

7  Gierke  v.  Martin,  1  Salk.  129;  important  if  we  had  no  statute 
BuUer  v.  Crips,  6  Mod.  29;  Bur-  similar  to  the  statute  passed  in 
ton  V.  Souter,  1  Ld.  Eaym.  774;  England  in  1705  known  as  3  &  4 
Carlos  V.  Fancourt,  5  Term    Eep.  Anne,  chapter  9. 

482;    Norton    v.  Eose,    2    Wash.  »  45  &  46  Victoria,  c.  61. 

14 


210  LAW  FOR  NOTARIES  PUBLIC. 

the  law;  they  adopted  it  in  1897.  Washington  followed  in 
1899,  together  with  a  number  of  other  states.  More  than 
half  of  the  states  have  now  adopted  the  law  practically  in 
the  same  form. 

§  115.  Notary's  Powers  and  Duties  in  the  Protesting  of 
Negotiable  Instruments, — Having  seen  the  origin  of  the  bill 
of  exchange  and  promissory  note,  we  now  come  to  the  duties 
incumbent  upon  a  notary  when  the  bill  of  exchange  is  not 
accepted  or  the  promissory  note  or  bill  of  exchange  is  not 
paid  at  the  stated  time.  A  notary  has  no  more  responsible 
powers  than  those  in  connection  with  negotiable  instru- 
ments ;  neglect  or  ignorance  on  his  part  leads  to  grave  com- 
plications. Of  course,  damage  must  follow;  and  it  will  fall 
either  on  the  notary  himself  or  on  his  bondsmen.  There- 
fore, the  more  a  notary  knows  concerning  the  law  of  protests 
the  better  fitted  he  will  be  to  do  his  work  as  the  law  of  nego- 
tiable instruments  demands. 

A  notary  becomes  a  public  officer  with  certain  duties  to 
perform  when  a  holder  of  a  bill  of  exchange  or  promissory 
note  delivers  to  him  the  said  instrument  for  him  to  protest 
it.  He  immediately  becomes  the  agent  of  the  owner  of  the 
paper,  and  of  all  others  who  have  any  interest  in  it. 

§  116.  Definitions. — ^It  will  be  well  to  consider  a  few 
technical  words  before  begmning  the  discussion  proper  of 
the  duties  and  powers  of  a  notary  in  respect  to  the  present- 
ment of  bills  and  notes  and  the  protesting  of  them  upon  re- 
fusal of  acceptance  or  payment. 

A  bill  of  exchange  is  a  written  order  from  one  person  to 
another,  directing  the  person  to  whom  it  is  addressed  to  pay 
to  a  third  person  a  certain  sum  of  money  therein  named.* 

The  following  is  a  "bill  of  exchange": 

1  Bouv.  Law  Diet.  (Eawle'B  Eev.),  tit.  "Bills  of  Exchange"; 
Byles  on  Bills,  1. 


PROTESTING   NEGOTIABLE   INSTRUMENTS. 

FORM  LIX. 


211 


$1000  ^  New  York  City,  N.  T.,  Nov.  10,  1910. 

At  thirty  days  sight  Pay  to  the 

Order  of  William  Stiles 


One  Thousand 


Dollars 


Value  received  and  charge  the  same  to  the  account  of 
To  Frank  Smith,  JOHN  JONES. 

No. Seattle,  Wash. 


"Bills  of  exchange,"  we  have  seen,^  came  into  use  very 
early;  they  came  through  what  is  known  as  the  ** law-mer- 
chant." The  "law-merchant"  originated  in  the  unwritten 
customs  of  merchants,  and  was  at  first  confined  to  transac- 
tions of  merchants  residing  at  different  places.^  If  we  as- 
sume that  John  Jones  lives  in  New  York  and  William  Stiles 
and  Frank  Smith  in  Washington,  and  that  Jones  owes  Stiles 
one  thousand  dollars  and  Smith  owes  Jones  one  thousand 
dollars,  we  will  have  the  simplest  case  of  the  use  of  a  "bill 
of  exchange." 

Smith  owes  $iooo  to 


^ 


Stile* 


Now  if  Jones  orders  Smith  to  pay  Stiles,  the  two  debts  will 
be  wiped  out  and  it  will  not  be  necessary  for  the  one  thou- 

8  Previous   note;    also    §114;    7  gers  trafficking  with  English  mer- 

Cyc.  Law  &  Proc,  p.  520.                 ^  chants;  and  afterward  to  inland 

8  "Bills  of  exchange  at  first  ex-  bills  between  merchants  traffick- 

tended  only  to    merchant    stran-  ing    the   one    with    the    other   in 


212  LAW  FOR  NOTARIES  PUBLIC. 

* 

sand  dollars  to  be  sent  across  the  country  twice.  The  mer- 
chants in  Italy,  soon  after  the  Dark  Ages,*  saw  the  advan- 
tage of  such  a  transaction  and  ever  since  that  time  it  has 
been  in  use  over  all  the  world. 

The  drawer  is  the  person  who  makes  a  bill  of  exchange 
(Jones)  .'^ 

The  payee  is  the  person  in  whose  favor  a  bill  of  exchange 
is  made  payable  (Stiles).® 

The  drawee  is  the  person  to  whom  a  bill  of  exchange  is  ad- 
dressed, and  who  is  requested  to  pay  the  amount  of  money 
therein  mentioned  (Smith). "^ 

"The  acceptor  is  one  who  accepts  a  bill  of  exchange.®  (In 
this  case  the  bill  would  be  presented  to  Smith  for  accept- 
ance.) 

Acceptance  is  the  engagement  to  pay  the  bill  in  money 
when  due.^  (If,  when  presented  to  Smith,  he  would  express 
his  willingness  to  pay  the  bill  of  exchange  when  due,  he 
should  write: 

FORM  LX. 
''Accepted  December  10,  1910.    Frank  Smith." 
across  the  face  of  the  bill.) 

Indorsement  is  the  writing  one's  name  on  the  back  of  a 
bill  of  exchange  or  promissory  note.*®  It  is  generally  made 
primarily  for  the  purpose  of  transferring  the  rights  of  the 
holder  of  the  instrument  to  some  other.**  (Following  out 
the  Jones-Smith-Stiles  example,  if  Smith  has  accepted  and 
Stiles  desires  to  raise  some  money  on  the  bill  of  exchange 
before  the  time  for  payment  arrives,  he  could  indorse  the 

England;    and    afterward    to  all  6  Bouv.    Law    Diet.     (Bawle's 

traders,  and  then  to  all  persons,  Eev.),  tit,  "Payee," 

whether  traders  or  not;  and  there  7  Bouv.    Law    Diet.     (Bawle's 

was  then  no  need  to  allege  any  Eev,),  tit.  "Drawee." 

custom  of  merchants":  Bromwich  8  3  Kent's  Com.,  p.  *75. 

V.  Loyd,  2  Lutw.  1582.  »  Byles  on  Bills,  288. 

4  4  Am.  &  Eng.  Eney.  of  Law,  10  20  Vt.  499. 

2d  ed.,  p.  79.  H  Bouv.    Law    Diet.    (Bawle's 

5  Bouv.    Law    Diet.     (Bawle's      Eev.),  tit.  "Itfdorsement." 
Bev.),  tit.  "Drawer." 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  213 

bill  by  writing  his  name  across  the  back  of  the  bill.  Then 
by  handing  it  to  Henry  Johnson  he  would  be  transferring  all 
rights  which  he  [Stiles]  has  in  the  bill.) 

Indorser  is  the  person  who  makes  an  indorsement  by  writ- 
ing on  the  back  of  the  bill.^^ 

A  foreign  bill  of  exchange  is  one  of  which  the  drawer  and 
drawee  are  residents  of  countries  foreign  to  each  other.  In 
this  respect  the  states  of  the  United  States  are  held  foreign 
as  to  each  other.^^  (The  Jones-Smith-Stiles  bill  is  a  foreign 
bill  of  exchange.) 

An  inland  bill  of  exchange  is  one  of  which  the  drawer  and 
drawee  are  residents  of  the  same  state  or  country.^* 

A  draft  is  an  order  for  the  payment  of  money,  drawn  by 
one  person  on  another.^^  A  sight  draft  is  one  payable  on 
presentation,  or  at  sight.  A  time  draft  is  one  payable  a  cer- 
tain number  of  days  after  sight  and  must  be  accepted  by  the 
party  on  whom  they  are  drawn.  (The  Jones-Smith-Stiles 
bill  of  exchange  is  an  example  of  a  "time  draft.") 

A  check  is  bill  of  exchange  in  which  a  bank  is  always  the 
drawee,  and  it  is  always  payable  on  demand.  It  is  a  written 
order  to  a  bank  by  a  person  who  has  money  on  deposit,  ask- 
ing the  bank  to  pay  to  the  person  named  in  the  check  or  his 
order  or  to  bearer  the  sum  of  money  mentioned. 

The  following  is  check : 

12  Bour.    Law    Diet.    (Eawle's  M  See  note  13. 

Eev.),  tit.  "Indorser."  15  Bouv.    Law    Diet.    (Eawle's 

13  Bouv.    Law    Diet.    (Eawle's      Eev.),  tit.  "Draft." 
Eev.),  tit.  "Bill  of  Exchange." 


214  LAW  FOR  NOTARIES  PUBLIC. 

FORM  LXI. 


No.  431 

Seattle,  Wash.,  Dec.  10,  1910. 

Pay  to  the  order  of  William  Stiles $1000 

One  Thousand Dollars. 

To  The  Georgetown  National  Bank, 

Seattle,  Washington. 

JOHN  JONES. 


The  drawer  of  a  cheek  is  the  maker  (Jones) . 
The  drawee  of  a  check  is  the  bank  on  which  it  is  drawn 
(Georgetown  National  Bank). 

The  payee  of  a  check  is  the  one  to  be  paid  the  money  by 
the  bank  (Stiles). 

The  indorser  of  a  check  is  a  person  who  signs  his  name  on 
the  back  of  the  check  the  same  as  the  indorser  of  a  bill  of 
exchange. 

A  promissory  note  is  a  written  promise  to  pay  a  certain 
sum  of  money  at  a  future  time  unconditionally.^® 

The  following  is  a  promissory  note: 

16  Bout.    Law    Diet.    (Eawle'»  Eev.),  tit.  "Promissory  Note." 


PROTESTING  NEGOTIABLE  INSTEUMENTS.  215 

FORM  LXII. 


$1000.                         Seattle,  Wash.,  Dec.  10,  1910. 
Three  months  after  date  I  promise  to  pay  to 
the  order  of  William  Stiles  


One  Thousand  ^ Dollars 

at  Seattle  National  Bank. 

Value  received. 

No. Due .  JOHN  JONES. 


The  maker  of  a  promissory  note  is  the  one  who  makes  it 
(Jones). 

The  payee  of  a  promissory  note  is  the  one  to  whom  the 
money  is  payable  (Stiles). 

Indorsement  of  a  promissory  note  is  the  same  as  indorse- 
ment of  a  bill  of  exchange. 

Negotiable  is  a  term  applied  to  that  right  which  is  capable 
of  being  transferred,  by  assignment,  indorsement,  or  by  de- 
livery.^'^  Bills  of  exchange,  checks  and  promissory  notes  are 
negotiable  if  they  read  "to  A  or  his  order,"  or  "to  A  or 
bearer."  In  transferring  such  instruments  the  owner  trans- 
fers not  only  the  paper  instrument,  but  also  transfers  to  the 
new  owner  the  right  to  sue  on  it  Ln  his  own  name.  In  the 
former,  "to  A  or  his  order,"  the  instrument  must  be  in- 
dorsed; in  the  latter,  "to  A  or  bearer,"  no  indorsement 
is  necessary;  in  both  cases  there  must  be  delivery :^^  See 
Neg.  Inst.  Law,  2  Rem.  &  Bal.  Code,  §  3392. 

"Originally,  all  instruments,  including  checks,  notes  and 
bills  of  exchange  were  non-negotiable,  in  the  sense  that  the 
maker  could,  when  asked  for  payment,  deduct  from  the 
amount  due  on  the  instrument  any  just  claim  that  he  had 
against  the  original  owner.     Such  just  claim  would  then  be 

17  148  Pa.  583.  18  Bouv.    Law    Diet.    (Eawle's 

Bev.),  tit.  "Negotiable." 


216  LAW  FOR  NOTARIES  PUBLIC. 

termed  a  counterclaim,  or  setoff.  In  the  revival  of  com- 
merce in  Italy,  in  the  eleventh  century,  merchants  and 
traders,  feeling  the  necessity  of  a  moneyed  instrument  that 
could  be  used  in  barter  and  trade,  to  a  limited  extent,  in  the 
same  way  that  bank  bills  are  now  used — and  appreciating 
that  no  such  instrument  could  be  circulated  or  sold  readily, 
no  matter  how  financially  strong  the  maker  was,  if  he,  the 
maker,  could  always  insist  on  adjusting  accounts  with  the 
original  owner — adopted  a  custom,  known  as  the  'custom 
of  merchants, '  which  soon  after  became,  or  had  the  force  of, 
a  law  known  as  the  'law-merchant,'  under  which  notes, 
checks,  drafts,  and  bills  of  exchange,  drawn  in  certain  pre- 
scribed forms,  and  in  the  hands  of  a  bona  fide  purchaser, 
could  be  enforced  to  their  full  extent  against  the  maker,  re- 
gardless of  any  defenses  or  counterclaims  that  the  maker 
might  have  against  the  original  holder;  such  instruments  are 
'negotiable  instruments.'  Negotiable  instruments  are  thus 
given  many  of  the  peculiarities  of  money — i.  e.,  gold  and 
silver  coin  and  bank  bills.  Neither  coined  money  nor  bank 
bills  are  termed  negotiable  instruments  or  commercial  paper, 
but  they  are  in  the  highest  sense  negotiable. "  ^^ 

A  non-negotiable  instrument  is  one  payable  only  to  a 
payee,  which  does  not  contain  the  words  "to  order"  or  "to 
bearer. ' ' 

A  protest  is  a  formal  paper  signed  and  sealed  by  a  notary 
wherein  he  certifies  that  on  the  day  of  its  date  he  presented 
the  original  bill  attached  thereunto,  or  a  copy,  to  the  ac- 
ceptor, or  the  original  note  to  ihe  maker  thereof,  and  de- 
manded payment,  or  acceptance,  which  was  refused,  for 
reasons  given  in  the  protest,  and  that  thereupon  he  protests 
against  the  drawer  and  indorsers  thereof  for  exchange,  re- 
exchange,  damages,  costs,  and  interest.^ 

PRESENTMENT  FOB  ACCEPTANCE. 

§  117.  When  Presentment  is  Necessary. — Presentment 
must  be  made  when  the  bill  is  payable  after  sight,  or  in  any 

i«  McMaster's      Irregular      and  20  Bouv.     Law     Diet.     (Bawle's 

Regular  Commercial  Paper.  Eev.),  tit.  "Protest." 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  217 

other  case  where  presentment  for  acceptance  is  necessary  in 
order  to  fix  the  maturity  of  the  instrument.  It  is  also  neces- 
sary when  the  bill  expressly  stipulates  that  it  shall  be  pre- 
sented for  acceptance.  And,  when  the  bill  is  drawn  payable 
elsewhere  than  at  the  residence  or  place  of  business  of  the 
drawee,  it  must  be  presented:  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §  3533. 

A  bill  payable  "at  sight"  must  be  presented  to  fix  the 
date  when  due.*  It  is  not  necessary  where  the  bill  is  pay- 
able on  demand  or  at  a  certain  designated  time.'' 

§  118.  Who  may  Present. — The  rightful  holder  or  some 
person  authorized  by  him  to  receive  payment  on  his  behalf 
may  make  the  presentment:  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §  3535.  If  the  holder  is  a  mere  agent  for  the  real 
owner,  that  fact  does  not  dispense  with  a  proper  present- 
ment.* Presentment  is  very  often  in  the  United  States,  as 
in  foreign  countries,  made  by  a  notary.  He  is  then  an  agent 
for  the  holder,  and  if  he  neglects  to  make  due  presentment 
for  acceptance,  he  is  liable  to  his  principal  in  damages.^  An 
agent's  authority  to  make  presentment  for  acceptance  ends 
like  any  other  agency  with  the  death  of  his  principal  and  a 
presentment  after  that  time  will  not  be  good.^ 

§  119.  Presentment  to  Whom. — The  presentment  of  the 
bill  for  acceptance  must  be  made  to  the  drawee  or  to  some 
person  authorized  to  accept  or  refuse  acceptance  on  his  be- 
half. If  the  bill  is  addressed  to  two  or  more  drawees  who 
are  not  partners,  presentment  must  be  made  to  them  all, 
unless  one  has  authority  to  accept  or  refuse  acceptance  for 

*  Hart  V.  Smith,   15  Ala.  807,  Eeynolds,  27  N.  Y.  586;  Benning- 

50   Am.    Dec.    161;    Nimocks    v.  ton  Bank  v.  Raymond,  12  Vt.  401. 

Woody,   97    N.   C.    1,   2    Am.   St.  i  Walker  t.  State  Bank,  9  N. 

Rep.   268,    2    S.  E.   249;    Cox  v.  Y.   582. 

New  York  National  Bank,  100  U.  2  Meadville  First  Nat.  Bank  v. 

S.  704,  25  L.  ed.  739.  New  York  Fourth  Nat.  Bank,  77 

5  7  Cyc.  Law  &  Proc,  p.  753;  N.  Y.  320,   33  Am.  Rep.   618;   7 

Davies    v.    Byrne,    10    Ga.    329;  Cyc.  Law  &  Proc,  p.  753. 

Townsley  v.  Sumrall,  2  Pet.   (U.  3  Gale  v.  Tappan,  12  N.  H.  14^ 

S.)   170,  7    L.    ed.    386;  Plato  v.  37  Am.  Dec.  194. 


218  LAW  FOB  NOTARIES  PUBLIC. 

all,  in  which  case  presentment  may  be  made  to  him  only. 
If  the  drawee  is  dead,  presentment  may  be  made  to  his  per- 
sonal representative.  If  the  drawee  has  been  adjudged  a 
bankrupt  or  an  insolvent,  or  has  made  an  assignment  for 
the  benefit  of  creditors,  presentment  may  be  made  to  him  or 
to  his  trustee  or  assignee :  Neg.  Inst.  Law,  Rem.  &  Bal.  Code, 
§  3535.  Presentment  to  one  of  a  partnership,  if  the  bill  is 
addressed  to  the  firm,  is  sufficient.® 

§  120.  Time  Presentment  Should  be  Made. — The  general 
rule  is  that  the  holder  of  a  bill  payable  at  or  after  sight,  or 
one  which  otherwise  must  be  presented  for  acceptance,  must 
either  present  it  for  acceptance  or  negotiate  it  within  a 
"reasonable  time."  If  he  fail  to  do  so,  the  drawer  and  all 
indorsers  are  discharged.  Presentment  must  be  made  at  a 
"reasonable  hour,"  on  a  business  day  and  before  the  bill  is 
overdue :  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3535.  To  de- 
termine what  a  "reasonable  time"  is  all  the  circumstances 
of  the  case  must  be  considered.  Some  facts  which  might 
affect  the  question  are  the  following:  Delay  in  the  mail  or 
other  means  of  communication;^  the  outbreak  of  war;^  the 
loss  of  the  bill;^  the  character  of  the  bill;*  or  the  circula- 
tion of  the  bill,^  which  is  perhaps  the  one  most  important. 
Laches  might  be  charged  if  the  bill  remained  in  the  hands 
of  the  payee ;  while,  if  it  were  in  circulation,  there  would  be 
no  grounds  for  such  charge.®  A  "reasonable  hour"  would 
not  be  after  the  family  has  retired  for  the  night.'^  The  pre- 
sentment must  be  on  a  business  day ;  if  the  day  of  maturity 
falls  upon  Sunday  or  a  holiday,  the  instrument  is  payable 
on  the  next  succeeding  business  day.  When  Saturday  is  not 
otherwise   a  holiday,  presentment  for  acceptance  may  be 

8  Gates   V.   Beecher,   60   N.  Y.  8  Aborn  v.  Bosworth,    1    E.  I. 

518,  19  Am.  Bep.  207;  Mt.  Pleas-  401. 

ant  Bank  v.  McLeran,  26  Iowa,  4  Shute  v.  Bobbins,  3  Car.  &  P. 

306.  80. 

1  Walsh   V.   Blatchley,    6  Wis.  8  7  Cyc.  Law  &  Proc,  p.  755. 
422,  70  Am.  Dec.  469.  *  Wallace    v.    Agry,    5    Mason 

2  United  States  v.  Barker,  1  (U.  S.),  118,  Fed.  Cas.  No. 
Paine  (U.  S.),  156,  Fed.  Cas.  No.  17,097;  see  note  5. 

14,517;     Durden     v.     Smith,     44  ^  Dana  v.  Sawyer,  22  Me.  244^ 

Miss.  548.  39  Am.  Dec.  574. 


PROTESTING  NEGOTIABLE   INSTRUMENTS.  219 

made  before  12  o'clock  noon  on  that  day:  Neg.  Inst.  Law, 
Rem.  &  Bal.  Code,  §  3536.  Where  the  holder  of  a  bill  drawn 
payable  elsewhere  than  at  the  place  of  business  or  the  resi- 
dence of  the  drawee  has  not  time,  with  the  exercise  of  rea- 
sonable diligence,  to  present  the  bill  for  acceptance  before 
presenting  it  for  payment  on  the  day  that  it  falls  due,  the 
delay  caused  by  presenting  the  bill  for  acceptance  before 
presenting  it  for  payment  is  excused,  and  does  not  discharge 
the  drawers  and  indorsers:  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §  3537. 

"In  determining  what  is  a  'reasonable  time'  or  an  'un- 
reasonable time,'  regard  is  to  be  had  to  the  nature  of  the 
instrument,  the  usage  of  trade  or  business,  if  any,  with  re- 
spect to  such  instruments,  and  the  facts  of  the  particular 
case":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3583. 

"A  check  is  a  bill  of  exchange  drawn  on  a  bank,  payable 
on  demand.  Except  as  herein  otherwise  provided,  the  pro- 
visions of  this  act  applicable  to  a  bill  of  exchange  payable  on 
demand,  apply  to  a  check":  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §  3575. 

Where  an  instrument  is  payable  a  certain  number  of 
months  after  date,  calendar  months  are  meant,  [a]  A  note 
dated  March  10,  1910,  payable  in  three  months,  is  due  June 
10,  1910.  A  note  dated  January  31st,  payable  one  month 
after  date,  is  due  the  last  day  of  February.  A  note  dated 
February  28th,  payable  in  eleven  months,  is  due  January 
28th.  Where  days  are  expressed,  Sundays  and  holidays  are 
included,  and  in  the  computation  the  day  of  the  date  is  ex- 
cluded and  the  whole  of  the  last  day  is  included.  A  note 
dated  May  28th,  payable  in  sixty  days,  is  due  July  27th.  An 
instrument  dated  May  20th,  payable  in  ninety  days,  is  due 
August  18th.    Thus: 

FORM  LXIII. 

Days  in  May  after  May  20th 11 

Days  in  June 30 

Days  in  July 31 

Days  in  August  to  make  whole  number  90 18 

90 


220  LAW  FOR  NOTARIES  PUBLIC. 

Where  two  dates  are  given,  one  the  day  of  the  week  and 
one  the  day  of  the  month,  and  they  are  inconsistent,  the  day 
of  the  month  will  govern. 

[a]  "The  word  'month'  or  'months,*  whenever  the  same  occurs  in  the 
statutes  of  this  state  now  in  force,  or  in  the  statutes  hereinafter  en- 
acted, or  in  any  contract  made  in  this  state,  shall  be  taken  and  con- 
strued to  mean  'calendar  month'":  Laws  1891,  p.  40,  §1;  2  H.  C, 
§1712;   Bal.  Code,  §4789;  Eem.  &  Bal.  Code,  §149. 

§  121.  Manner  of  Presentment. — As  a  safe  rule  to  follow 
it  might  be  said  that  the  bill  should  be  shown  to  the  drawee 
when  it  is  presented  for  acceptance.^  This  is  not  necessary 
if  on  making  the  demand  the  person  has  the  bill  ready  to 
produce  if  it  is  called  for;^  or  if  the  drawee  can  give  an  in- 
telligent answer  without  seeing  the  bill.^  The  presentment 
must  be  made  once  and  absolutely;  it  cannot  be  made  and 
then  withdrawn,  offering  to  call  again  the  next  day.*  Only 
one  part  of  a  set  of  two  or  more  is  presented.** 

§  122.  Acceptance:  Deflnition. — Acceptance  is  an  agree- 
ment by  the  drawee  of  a  bill  to  pay  it  when  it  comes  due. 
He  must  agree  to  pay  it  at  the  time  it  comes  due  and  in 
money  and  also  at  the  place  named  in  the  bill.  "The  accept- 
ance of  a  bill  is  the  signification  by  the  drawee  of  his  assent 
to  the  order  of  the  drawer.  The  acceptance  must  be  in  writ- 
ing and  signed  by  the  drawee.  It  must  not  express  that  the 
drawee  will  perform  his  promise  by  any  other  means  than 
the  payment  of  money":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code, 
§3522.  **The  holder  of  a  bill  presenting  the  same  for 
acceptance  may  require  that  the  acceptance  be  written  on 
the  bill,  and,  if  such  request  is  refused,  may  treat  the  bill  as 
dishonored":   Neg.  Inst.  Law,  Rem.   &  Bal.   Code,  §  3523. 

"Where  the  acceptance  is  written  on  a  paper  other  than 
the  bill  itself,  it  does  not  bind  the  acceptor  except  in  favor 

1  Fall    Eiver    Union    Bank    v.  *  Case  v.  Burt,  15  Mich.  82. 
Willard,  5  Met.  (Mass.)  216.  5  Downes  v.    Church,    13    Pet. 

2  Burlington  First  Nat.  Bank  (U.  S.)  205,  10  L.  ed.  128;  Walsh 
V.  Hatch,  78  Mo.  13.  v.  Blatchley,  6  Wis.  422,  70  Am. 

8  Fisher  v.  Beckwith,  19  Vt.  31,      Dec,  469. 
46  Am.  Dec.  174. 


PROTESTING  NEGOTIABLE   INSTRUMENTS.  221 

of  a  person  to  whom  it  is  shown,  and  who,  on  the  faith 
thereof,  receives  the  bill  for  value";  Neg.  Inst.  Law,  Rem.  & 
Bal.  Code,  §  3524.  "The  drawee  is  allowed  twenty-four 
hours  after  presentment  in  which  to  decide  whether  or  not 
he  will  accept  the  bill;  but  the  acceptance  if  given  dates  as 
of  the  day  of  presentation":  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §  3526.  "Where  a  drawee  to  whom  a  bill  is  delivered 
for  acceptance  destroys  the  same,  or  refuses  within  twenty- 
four  hours  after  such  delivery,  or  within  such  other  period 
as  the  holder  may  allow,  to  return  the  bill  accepted  or  non- 
accepted  to  the  holder,  he  will  be  deemed  to  have  accepted 
the  same":  Neg.  Inst,  Law,  Rem,  &  Bal.  Code,  §  3527. 

§  123.  Acceptance:  Different  Kinds. — "An  acceptance  is 
either  general  or  qualified,  A  general  acceptance  assents 
without  qualification  to  the  order  of  the  drawer.  A  quali- 
fied acceptance  in  express  terms  varies  the  effect  of  the  bill 
as  drawn":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3529,  "An 
acceptance  to  pay  at  a  particular  place  is  a  general  accept- 
ance, unless  it  expressly  states  that  the  bill  is  to  be  paid 
there  only  and  not  elsewhere":  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §  3530.  "An  acceptance  is  qualified,  which  is:  (1) 
conditional,  that  is  to  say,  which  makes  payment  by  the 
acceptor  dependent  on  the  fulfillment  of  a  condition  therein 
stated;  (2)  partial,  that  is  to  say,  an  acceptance  to  pay  part 
only  of  the  amount  for  which  the  bill  is  drawn;  (3)  local, 
that  is  to  say,  an  acceptance  to  pay  only  at  a  particular 
place;  (4)  qualified  as  to  time;  (5)  the  acceptance  of  some 
one  or  more  of  the  drawees,  but  not  of  all":  Neg.  Inst,  Law, 
Rem,  &  Bal,  Code,  §  3531. 

« 

§  124,  Acceptance:  Qualified:  Need  not  Accept. — "The 
holder  may  refuse  to  take  a  qualified  acceptance,  and  if  he 
does  not  obtain  an  unqualified  acceptance,  he  may  treat  the 
bill  as  dishonored  by  nonacceptance.  Where  a  qualified 
acceptance  is  taken,  the  drawer  and  indorsers  are  discharged 
from  liability  on  the  bill,  unless  they  have  expressly  or  im- 
pliedly authorized  the  holder  to  take  a  qualified  acceptance, 
or  subsequently  assent  thereto.  When  the  drawer  or  an  in- 
dorser  receives  notice  of  a  qualified  acceptance,  he  must, 


222  LAW  FOR  NOTARIES  PUBLIC. 

within  a  reasonable  time  express  his  dissent  to  the  holder,  or 
he. will  be  deemed  to  have  assented  thereto":  Neg.  Inst. 
Law,  Rem.  &  Bal.  Code,  §  3532. 

§  125.  How  Acceptance  is  Shown. — If,  when  the  bill  is 
presented  to  the  drawee,  he  desires  to  accept,  he  should  write 
across  the  face  of  the  bill : 

FORM  LXrV. 
"Accepted.    John  Doe.    Nov.  29,  1910." 

Any  words  of  the  drawee  which  show  an  intention  to  pay 
will  operate  as  an  acceptance.^  Some  authorities  hold  that 
any  word  or  words  written  on  the  bill  which  do  not  clearly 
negative  the  intention  to  pay  will  be  considered  an  accept- 
ance.^ 

Where  a  bill  is  drawn  in  parts  the  acceptance  should  be 
written  on  one  part  only ;  it  would  make  no  difference  which 
part:  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3571.  ** Where  a 
check  is  certified  by  the  bank  on  which  it  is  drawn,  the  cer- 
tification is  equivalent  to  an  acceptance":  Neg.  Inst.  Law, 
Rem.  &  Bal.  Code,  §  3577. 

§  126.  Dishonored  by  Nonacceptance. — "Presentment 
for  acceptance  is  excused  and  a  bill  may  be  treated  as  dis- 
honored by  nonacceptance,  in  either  of  the  following  cases— 
(1)   where  the  drawee  is  dead,  or  has  absconded,  or  is  a 

1  Ward  V.  Allen,  2  Met.  ceptances:  "Honored,"  Peterson 
(Mass.)  53,  35  Am.  Dec,  387;  Bar-  v.  Hubbard,  28  Mich.  197; 
net  V.  Smith,  30  N.  H.  256,  64  "Seen,"  Spear  v.  Pratt,  2  Hill 
Am.  Dec.  290;  In  re  Armstrong,  (N.  Y.),  582,  38   Am.   Dec.  600; 

41  Fed.  382;  Block  v.  Wilkerson,  "Presented,"  Barnet  v.  Smith,  30 

42  Ark.  253;  Miller  v.  Butler,  1  N.  H.  256,  64  Am.  Dec.  290; 
Cranch  (C.  C),  470,  Fed.  Cas.  "Excepted"  written,  "Accepted" 
No.  9565;  Espy  v.  Cincinnati  intended,  Meyer  v.  Beardsley,  30 
Bank,  18  Wall.  (U.  S.)  604,  21  N.  J.  L.  236.  Examples  of  suffi- 
L.  ed.  947.  cient     refusals:     "I    protest    the 

2  Spear  v.  Pratt,  2  Hill  (N.  above,"  Pridgen  t.  Cox,  13  Tex. 
Y.),  582,  38  Am.  Dec.  600;  Nor-  257;  "Kiss  my  foot,"  Norton  t. 
ton  V.  Knapp,  64  Iowa,  112,  19  N,  Knapp,  64  Iowa,  112,  19  N.  W. 
W.  867;  Jeune  v.  Ward,  2  Stark.  867. 

326.     Examples   of  sufficient  ac- 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  223 

fictitious  person,  or  a  person  not  having  capacity  to  contract 
by  bill;  (2)  where,  after  the  exercise  of  reasonable  diligence, 
presentment  cannot  be  made;  (3)  where,  although  present- 
ment has  been  irregular,  acceptance  has  been  refused  on  some 
other  ground":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3538. 
**A  bill  is  dishonored  by  nonacceptance — (1)  when  it  is  duly 
presented  for  acceptance  and  such  an  acceptance  as  is  pre- 
scribed by  this  act  is  refused  or  cannot  be  obtained;  or  (2) 
when  presentment  for  acceptance  is  excused  and  the  bill  is 
not  accepted":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3539. 
**  Where  a  bill  is  duly  presented  for  acceptance,  and  is  not 
accepted  within  the  prescribed  time,  the  person  presenting 
it  must  treat  the  bill  as  dishonored  by  nonacceptance  or  he 
loses  the  right  of  recourse  against  the  drawer  and  in- 
dorser":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3540. 

§  127.  Effect  of  Dishonor.— "Where  a  bill  is  duly  pre- 
sented for  acceptance,  and  is  not  accepted  within  the  pre- 
scribed time,  the  person  presenting  it  must  treat  the  bill  as 
dishonored  by  nonacceptance  or  he  loses  the  right  of  re- 
course against  the  drawer  and  indorser":  Neg.  Inst.  Law, 
Rem.  &  Bal.  Code,  §  3540.  **When  a  bill  is  dishonored  by 
nonacceptance,  an  immediate  right  of  recourse  against  the 
drawers  and  indorsers  accrues  to  the  holder,  and  no  present- 
ment for  payment  is  necessary":  Neg.  Inst.  Law,  Rem.  & 
Bal.  Code,  §  3541. 

§  128.  Protest  for  Nonacceptance. — "Where  a  foreign 
bill  appearing  on  its  face  to  be  such  is  dishonored  by  non- 
acceptance,  it  must  be  duly  protested  for  nonacceptance. 
....  If  it  is  not  so  protested,  the  drawer  and  indorsers  are 
discharged.  Where  a  bill  does  not  appear  on  its  face  to  be 
a  foreign  bill,  protest  thereof  in  case  of  dishonor  is  unneces- 
sary": Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3542.  "Where 
any  negotiable  instrument  has  been  dishonored,  it  may  be 
protested  for  nonacceptance  or  nonpayment,  as  the  case  may 
be;  but  protest  is  not  required  except  in  the  case  of  foreign 
bills  of  exchange":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3508. 


224  LAW  FOB  NOTARIES  PUBLIC. 

PRESENTMENT  FOR  PAYMENT. 

§  129.  When  Presentment  is  Necessary. — As  a  general 
rule  presentment  for  payment  and  demand  are  necessary  in 
order  to  charge  the  indorsers  of  any  negotiable  instrument. 
"Presentment  for  payment  is  not  necessary  in  order  to 
charge  the  person  primarily  liable  on  the  instrument ;  but  if 
the  instrument  is,  by  its  terms,  payable  at  a  special  place, 
and  he  is  able  and  willing  to  pay  it  there  at  maturity,  such 
ability  and  willingness  are  equivalent  to  a  tender  of  pay- 
ment upon  his  part.  But  except  as  herein  otherwise  pro- 
vided, presentment  for  payment  is  necessary  in  order  to 
charge  the  drawer  and  indorsers":  Neg.  Inst.  Law,  Rem,  & 
Bal.  Code,  §  3461.  "Presentment  for  payment  is  not  re- 
quired in  order  to  charge  the  drawer  where  he  has  no  right 
to  expect  or  require  that  the  drawee  or  acceptor  will  pay  the 
instrument":  Neg.  Inst,  Law,  Rem,  &  Bal.  Code,  §  3470. 
"Presentment  for  payment  is  not  required  in  order  to  charge 
an  indorser  where  the  instrument  was  made  or  accepted  for 
his  accommodation,  and  he  has  no  reason  to  expect  that  the 
instrument  will  be  paid  if  presented":  Neg.  Inst.  Law,  Rem. 
&  Bal,  Code,  §  3471.  "Presentment  for  payment  is  dis- 
pensed with — (1)  where  after  the  exercise  of  reasonable 
diligence  presentment  as  required  by  this  act  cannot  be 
made;  (2)  where  the  drawee  is  a  fictitious  person;  (3)  by 
waiver  of  presentment,  express  or  implied":  Neg.  Inst.  Law, 
Rem.  &  Bal.  Code,  §  3473. 

§  130.  Who  may  Present. — "Presentment  for  payment, 
to  be  sufficient,  must  be  made  by  the  holder,  or  some  person 
authorized  to  receive  payment  on  his  behalf":  Neg,  Inst.  Law, 
Rem.  &  Bal.  Code,  §  3463,  In  the  case  of  a  foreign  bill  a 
number  of  states  have  held  that  the  demand  for  payment 
must  be  made  by  a  notary  in  order  that  he  may  make  the 
protest.  Some  courts  have  held  that  a  clerk  or  deputy  of  a 
notary  may  present  a  bill  or  note,  and  later,  if  not  paid, 
the  notary  may  protest;  but  the  weight  of  authority  is 
against  that  mode  of  presentment,*    A  majority  of  the  courts 

1  Ocean  Nat,  Bank  v,  WilliamB,  51  N,  Y.  84;  Locke  v.  Huling, 
102  Mas*.  141;  Gawtry  v.  Doane,      24  Tex.  311;  Saciider  v.  Brown, 


PROTESTING  NEGOTIABLR  INSTRUMENTS.  225 

hold  that  the  notary  must  make  the  presentment  personally  in 
order  to  protest  it  later  unless  there  is  an  established  usage  or 
statute  to  the  contrary.* 

§  131.  Presentment  to  Whom. — "Presentment  for  pay- 
ment, to  be  sufficient,  must  be  made  to  the  person  primarily 
liable  on  the  instrument,  or,  if  he  is  absent  or  inaccessible, 
to  any  person  found  at  the  place  where  the  presentment  is 
made":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3463.  "Where 
the  person  primarily  liable  on  the  instrument  is  dead,  and 
no  place  of  payment  is  specified,  presentment  for  payment 
must  be  made  to  his  personal  representative  if  such  there 
be,  and  if,  with  the  exercise  of  reasonable  diligence,  he  can 
be  found":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3467. 
"Where  the  persons  primarily  liable  on  the  instrument  are 
liable  as  partners,  and  no  place  of  payment  is  specified,  pre- 
sentment for  payment  may  be  made  to  any  one  of  them,  even 
though  there  has  been  a  dissolution  of  the  firm":  Neg.  Inst. 
Law,  Rem.  &  Bal,  Code,  §  3468,  "Where  there  are  severaj 
persons,  not  partners,  primarily  liable  on  the  instrument, 
and  no  place  of  payment  is  specified,  presentment  must  be 
made  to  them  all":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3469. 
Where  paper  is  payable  at  a  bank,  presentment  may  be  made 
to  the  president,  where  the  bank  is  closed ;  ^  to  its  last  man- 
ager, where  it  has  ceased  to  exist  ;^  to  the  cashier,  if  the  pre- 
sentment is  made  at  the  bank.^ 

§  132.  Time  Presentment  Should  be  Made.— "Where 
the  instrument  is  not  payable  on  demand,  presentment  must 
be  made  on  the  day  it  falls  due.     Where  it  is  payable  on 

3  McLean  (U.  S.),  481,  Fed.  Cas,       169  111.  517,  61  Am.  St.  Eep.  203, 
No.  12,205;  Donegan  v.  Wood,  49       48  N.  E.  438,  39  L.  R.  A.  159. 
Ala.  242,  20  Am.  Rep.  275.  ^  Waring  v.  Betts,  90  Va.  46, 

44   Am.   St.   Rep.  884,  17  S.   E. 
4  Commercial  Bank  v.  Varnum,      ^gg 

49  N.  Y.  269;  Nelson  y.  Fortte-  g-Q^,^  ^^  ^^^^  10  j^^    205; 

rail,  7  Leigh  (Va.),  179;  Atwell  Crenshaw    v.    McKiernan,    Minor 

V.  Grant,  11  Md.  101;  Lee  v.  Bu-  ^^j^  ^^    295;    Bechtell    v.    Miner's 

ford,   4   Met.    (Ky.)    7;    Sheegog  ^^^^^  g  Phila.  (Pa.)  121;  Magoun 

V.  James,  26  Tex.  501.  ^    Walker,  49  Me.  419;  Swan  v. 

t  Niblack  t.  Park  Nat.  Bank,  Hodges,  3  Head   (Tenn.),  251. 
15 


225  LAW   FOB  NOTARIES  PUBLIC. 

demand,  presentment  must  be  made  within  a  reasonable 
time  after  its  issue,  except  that  in  the  case  of  a  bill  of  ex- 
change, presentment  for  payment  will  be  sufficient  if  made 
within  a  reasonable  time  after  the  last  negotiation  thereof": 
Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3462.  "Presentment 
for  payment,  to  be  sufficient,  must  be  made  at  a  reasonable 
hour  on  a  business  day":  Neg.  Inst.  Lav/,  Rem.  &  Bal.  Code, 
§3463.  "Where  the  instrument  is  payable  at  a  bank,  pre- 
sentment for  payment  must  be  made  during  banking  hours, 
unless  the  person  to  make  payment  has  no  funds  there  to 
meet  it  at  any  time  during  the  day,  in  which  case  present- 
ment at  any  hour  before  the  bank  is  closed  on  that  day 
is  sufficient":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3466. 
"Delay  in  making  presentment  for  payment  is  excused 
when  the  delay  is  caused  by  circumstances  beyond  the  con- 
trol of  the  holder,  and  not  imputable  to  his  default,  mis- 
conduct or  negligence.  When  the  cause  of  delay  ceases  to 
operate,  presentment  must  be  made  with  reasonable  dili- 
gence": Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3472.  "Every 
negotiable  instrument  is  payable  at  the  time  fixed  therein 
without  grace.  When  the  day  of  maturity  falls  upon  Sun- 
day, or  a  holiday,  the  instrument  is  payable  on  the  next 
succeeding  business  day.  Instruments  falling  due  on  Sat- 
urday are  to  be  presented  for  payment  on  the  next  suc- 
ceeding business  day,  except  that  instruments  payable  on 
demand  may,  at  the  option  of  the  holder,  be  presented  for 
payment  before  12  o'clock  noon  on  Saturday,  Avhen  that 
entire  day  is  not  a  holiday":  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §  3475^/^.  "Where  the  instrument  is  payable  at  a 
fixed  period  after  date,  after  sight,  or  after  the  happening 
of  a  specified  event,  the  time  of  payment  is  determined  by 
excluding  the  day  from  which  the  time  is  to  begin  tJb  run, 
and  by  including  the  date  of  payment":  Neg.  Inst.  Law, 
Rem.  &  Bal.  Code,  §  3476. 

It  is  very  important  that  the  statute  as  to  demand  be 
followed  in  every  detail,  as  otherwise  the  drawers  or  in- 
dorsers  of  bills  of  exchange  or  indorsers  of  promissory  notes 
may  be  relieved  of  liability.*    What  a  "reasonable"  time  is 

1  Bell  V.  Chicago  First  Nat.  Eep.  105,  2&  L.  ed.  409;  Went- 
Bank,  115  U.  S.  373,  6  Sup.  Ct.       worth  v.  Clap,  11  Mass.  87;  Jones 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  227 

must  depend  on  all  the  circumstances  of  any  particular  case.^ 
"In  determining  what  is  a  'reasonable  time'  or  an  'un- 
reasonable time,"  regard  is  to  be  had  to  the  nature  of  the 
instrument,  the  usage  of  trade  or  business,  if  any,  with  re- 
spect to  such  instruments,  and  the  facts  of  the  particular 
case":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3583.  "Where 
the  day,  or  the  last  day,  for  doing  any  act  herein  required 
or  permitted  to  be  done  falls  on  Sunday  or  on  a  holiday, 
the  act  may  be  done  on  the  next  succeeding  secular  or  busi- 
ness day":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3584. 

§  133.  Place  of  Presentment. — "Presentment  for  pay- 
ment, to  be  sufficient,  must  be  made  at  a  proper  place  as 
herein  defined":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3463. 
"Presentment  for  payment  is  made  at  a  proper  place — (1) 
where  a  place  of  payment  is  specified  in  the  instrument  and 
it  is  there  presented;  (2)  where  no  place  of  payment  is 
specified,  but  the  address  of  the  person  to -make  payment  is 
given  in  the  instrument  and  it  is  there  presented ;  (3)  where 
no  place  of  payment  is  specified  and  no  address  is  given  and 
the  instrument  is  presented  at  the  usual  place  of  business  or 
residence  of  the  person  to  make  payment ;  (4)  in  any  other 
case  if  presented  to  the  person  to  make  payment  wherever 
he  can  be  found,  or  if  presented  at  his  last  known  place  of 
business  or  residence":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code, 
§  3464.  "Presentment  for  pajrment  is  dispensed  with  where 
after  the  exercise  of  reasonable  diligence  presentment  as 
required  by  this  act  cannot  be  made":  Neg.  Inst.  Law,  Rem. 
&  Bal.  Code,  §3473.  If  the  maker's  or  acceptor's  resi- 
dence is  designated  as  the  place  of  presentment,  the  bill  or 
note  must  be  presented  there  although  he  may  be  tem- 
porarily absent ;  his  absence  is  no  excuse  for  not  presenting 
it  there.^    It  is  presumed  he  has  made  some  arrangements 

T.  Fales,  4  Mass.  245;   Griffin  v.  478;  Jordan  v.  Wheeler,  20  Tex. 

Goff,    12    Johns.     (N.    Y.)     423;  698;  Montelius  v.  Charles,  76  111. 

Walsh  V.  Dart,  12  Wis.  635.  303. 

2  Keyes    v.    Fernstermaker,    24  i  Whittier    v.    Graffam,  3  Me. 

Cal.  329;  Lockwood  v.  Crawford,  82;     Pierce    v.     Gate,     12     Gush. 

18  Conn.  361;  Goodwin  v.  Daven-  (Mass.)    190,    59    Am.    Dec.    176; 

port,   47   Me.    112,   74   Am.   Dec.  Glaser  v.  Bounds,  16  E.  I.  235,  14 


228  LAW  FOR  NOTARIES  PUBLIC. 

to  make  payment  at  that  place.''  If  the  maker  or  acceptor 
lias  changed  his  residence  or  place  of  business  before  the 
instrument  becomes  due,  but  does  not  leave  the  state,  dili- 
gence must  be  exercised,  if  no  personal  demand  can  be 
made,  to  find  his  new  residence  or  place  of  business  and 
presentment  must  be  made  there.^ 

§  134.  Manner  of  Presentment. — "The  instrument  must 
be  exhibited  to  the  person  from  whom  payment  is  demanded, 
and  when  it  is  paid  must  be  delivered  up  to  the  party  pay- 
ing it";  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3465.^  When 
the  bill  is  not  produced,  but  payment  is  refused  on  some 
other  ground,  the  bill  is  deemed  to  have  been  duly  pre- 
sented.2  If  the  instrument  has  been  lost  or  destroyed,  the 
demand  for  payment  may  be  made  without  the  instrument.* 
A  copy  should  be  shown  under  such  circumstances.* 

§  135.  Payment. — When  the  demand  for  payment  is  met 
with  the  full  amount  of  money,  the  one  making  the  demand 
must  accept  the  same  and  deliver  the  bill  or  note.  "The 
instrument  must  be  exhibited  to  the  person  from  whom  pay- 
ment is  demanded,  and  when  it  is  paid  must  be  delivered 
up  to  the  party  paying  it":  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §  3465.     Canceling  a  bill  or  note  or  stamping  it  paid 

Atl.  863;  Levy  v.  Drew,  14  Ark.  of  the  bank  by  which  the  note 

334.  has  been  held;  but  if  the  place  of 

5  Granite  Bank  v.  Ayers,  16  payment  is  some  other  place,  and 
Pick.  (Mass.)  392,  28  Am.  Dec.  the  bank  is  not  the  holder,  then 
253.  the  notary  should  have  the  note 

6  Bigelow  V.  Kellar,  6  La.  Ann.  at  the  time  of  demand:  Union 
59,  54  Am.  Dee.  555;  Brooks  v.  Bank  v.  Morgan,  2  La.  Ann.  418 
Blaney,  62  Me.  456;  Famsworth  2  Benj.  Chalmers'  Bills  and 
V.  Mullen,  164  Mass.  112,  41  N.  Notes,  p.  165;  Porter  v.  Thom, 
E.  131;  Anderson  v.  Drake,  14  167  N.  Y.  584,  60  N.  E.  1119; 
Johns.  (N.  Y.)  114,  7  Am.  Dec.  Legg  t.  Vinal,  165  Mass.  555,  43 
442.  N.  E.  518. 

1  A  notary  need  not  have  the  s  Hinsdale    v.  Miles,    5    Conn. 

note   in   his    possession   when   he  331;   Arnold  v.  Dresser,  8   Allen 

demands  payment,  if  the  note  is  (Mass.),  435. 

payable   at   the  bank,   and  is  in  4  Hinsdale    T.    Miles,    5    Conn. 

the  cashier's  hands  as  an  officer  331. 


PROTESTINQ  NEGOTIABLE  INSTRUMENTS.  229 

does  not  necessarily  show  a  payment.^  If  a  bill  or  note 
designates  a  particular  currency  in  which,  it  is  to  be  paid, 
payment  should  be  made  in  that  currency.^  "When  the  ac- 
ceptor of  a  bill  drawn  in  a  set  pays  it  without  requiring 
the  part  bearing  his  acceptance  to  be  delivered  up  to  him, 
and  that  part  at  maturity  is  outstanding  in  the  hands  of 
a  holder  in  due  course,  he  is  liable  to  the  holder  thereon": 
Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3572.  "Except  as 
herein  otherwise  provided,  where  any  one  part  of  a  biU 
drawn  in  a  set  is  discharged  by  payment  or  otherwise  the 
whole  bill  is  discharged":  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §  3573. 

§  136.  Protest  for  Nonpayment. — "Where  a  foreign  bill 
appearing  on  its  face  to  be  such  is  dishonored  by  non- 
acceptance,  it  must  be  duly  protested  for  nonacceptanee,  and 
where  such  a  bill  which  has  not  previously  been  dishonored 
by  nonacceptanee  is  dishonored  by  nonpayment,  it  must  be 
duly  protested  for  nonpayment.  If  it  is  not  so  protested, 
the  drawer  and  indorsers  are  discharged.  Where  a  bill 
does  not  appear  on  its  face  to  be  a  foreign  bill,  protest 
thereof  in  case  of  dishonor  is  unnecessary":  Neg.  Inst.  Law, 
Rem.  &  Bal.  Code,  §  3542.  "Where  any  negotiable  instru- 
ment has  been  dishonored,  it  may  be  protested  for  non- 
acceptance  or  nonpayment,  as  the  case  may  be;  but  protest 
is  not  required  except  in  the  case  of  foreign  bills  of  ex- 
change": Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §3508.  "A 
bill  which  has  been  protested  for  nonacceptanee  may  be 
subsequently  protested  for  nonpayment":  Neg.  Inst.  Law, 
Rem.  &  Bal.  Code,  §  3547. 

PROTEST  FOE  NONACCEPTANCE  OE  NONPAYMENT. 

§  137.  Protest:  Definition. — Protest  is  a  formal  state- 
ment in  writing,  by  a  public  notary,  under  seal,  that  a  eer- 

1  Steinhart    v.    Bank,    94   Cal.  C.  538;  Bank  v.  White,  1  Denio 

362,  28  Am.  St.  Eep.  132,  29  Pae.  (N.  Y.),  608. 
717;    Union   Bank   v.    Slidell,    15  ^  Mangum    v.    Ball,    43    Miss. 

^     \..    ^  T,  o«  -KT  288,  5  Am.  Eep.  488;  Edwards  v. 

La.  314;  Dewey  v.  Bowers,  26  N.  ^^^^^^  ^  q^^^  ^^' 


230  LAW  FOR  NOTARIES  PUBLIC. 

tain  bill  of  exchange  or  promissory  note  (describing  it)  was 
on  a  certain  day  presented  for  payment,  or  acceptance,  and 
that  such  payment  or  acceptance  was  refused.^  Strictly 
speaking,  it  does  not  include  either  the  presentment  of  a 
bill  or  the  notice  of  dishonor;  but,  in  its  popular  sense,  it 
is  used  to  include  all  the  steps  or  acts  accompanying  the  dis- 
honor of  a  bill  or  note  necessary  to  charge  a  drawer  or  an 
indorser.2 

§  138.  Protest:  What  Law  Governs. — A  protest  should 
be  made  at  the  time,  in  the  mode,  and  by  the  persons  pre- 
scribed by  the  law  of  the  place  where  the  bill  is  payable.^ 
The  protest  of  a  bill  made  in  one  state,  and  wanting  a  seal 
prescribed  by  the  law  in  that  state,  will  not  be  received  in 
evidence  in  another  state.* 

§  139.  Necessity  of  Protest. — "Where  a  foreign  bill  ap- 
pearing on  its  face  to  be  such  is  dishonored  by  nonaccept- 
ance,  it  must  be  duly  protested  for  nonacceptance,  and 
where  such  a-  bill  which  has  not  previously  been  dishonored 
by  nonacceptance  is  dishonored  by  nonpayment,  it  must  be 
duly  protested  for  nonpayment.  If  it  is  not  so  protested, 
the  drawer  and  indorsers  are  discharged.  Where  a  bill 
does  not  appear  on  its  face  to  be  a  foreign  bill,  protest 
thereof  in  case  of  dishonor  is  unnecessary":  Neg.  Inst.  Law, 
Rem.  &  Bal.  Code,  §  3542.    "A  check  is  a  bill  of  exchange 

1  Swayze  v.  'Britton,  17  Kan.  Minn.  250,  43  Am.  Eep.  201,  13 
625,  quoting  Burrill's  Law  Diet.;       N.  W.  167. 

Story  on  Bills,  §  276;  Coddington  8  Story    on  Conflict    of    Laws, 

V.  Davis,  1  N.  Y.  186.  8th  ed.,  §   360;   Tickner  v.  Eob- 

„  o   .  -v     1,  o  TI-.  ^  erts,  11  La.  14,  30  Am.  Dec.  706; 

2  Spies  V.  Newberry,  2  Doug.  -^  .  .  t>  i  n  o  xr-ii 
/■»r-  UN  Amz  TtTu-i.  TT  -i-u  nn  Eochester  Bank  v.  Gray,  2  Hill 
(Mich.)  425;  White  v.  Keith,  97  ^^^     ,^  ^     „^„      ^  „  . 

Ala.  668,  12  South.  611;  Sprague      f '  Jl^'  ''^'  ,^r.^"    Z'  J^.^ 

V.  Fletcher,  8  Or.  367  34  Am.  ^^°V  """0' V^f^"'^  'f '  '' 
T>  c-o-T      T>  TT  11      no       Am.    Dec.    89;    Wooley   v.   Lycn, 

Eep     587;     Brown    v.    Hull,    33  ^^  '^  ^    ^^  ^^^^ 

Gratt.    (Va.)    23;  Ayrault  v.  Pa-      ^_    ^_,^  '       ^,,.  _        >  ^ 


cific  Bank,  47  N.  Y.  570,  7  Am, 

Eep.   489;    Wood   Eiver  Bank   v. 

Omaha  Bank,  36  Neb.  744,  55  N.       ^Vm:fi  ! 

W,  239;  7  Cyc.  Law  &  Proc,  p. 

1051;    Wolford    t.    Andrews,    29 


ham   Bank   v.   Allison,    15   Iowa, 
357;  McClane  v.  Fitch,  4  B.  Mon. 


4  Tickner  v.  Eoberts,  11  La.  14, 
30  Am.  Dec.  706;  Eochester  Bank 
V.  Gray,  2  Hill  (N.  Y.),  227. 


PROTESTING' NEGOTIABLE  INSTRUMENTS.  231 

drawn  on  a  bank,  payable  on  demand.  Except  as  herein 
otherwise  provided,  the  provisions  of  this  act  applicable  to 
a  bill  of  exchange  payable  on  demand  apply  to  a  check": 
Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3575.  "Where  a  bill 
is  lost  or  destroyed  or  is  wrongly  detained  from  the  person 
entitled  to  hold  it,  protest  may  be  made  on  a  copy  or  writ- 
ten particulars  thereof":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code, 
§3550.  "Where  any  negotiable  instrument  has  been  dis- 
honored it  may  be  protested  for  nonacceptance  or  nonpay- 
ment, as  the  case  may  be ;  but  protest  is  not  required  except 
in  the  case  of  foreign  bills  of  exchange":  Neg.  Inst.  Law, 
Rem.  &  Bal.  Code,  §  3508. 

§  140.  Purpose  of  Protest. — ^A  bill  of  exchange  is  pro- 
tested for  want  of  acceptance  or  payment  as  a  matter  of 
proof.^  A  sends  B  a  bill  of  exchange  in  which  C  is  named 
as  drawee.  C  accepts.  B  then  indorses  it  to  D,  D  to  E, 
E  to  F;  but  when  the  time  for  payment  arrives,  C  refuses 
to  pay.  P  then  has  a  legal  right  to  look  to  those  secondarily 
liable,  B,  D  and  E.  But,  if  he  desires  to  sue  D  for  the  amount 
of  the  note,  he  will  be  obliged  to  prove  on  the  trial  that  he 
first  attempted  to  collect  the  money  of  the  person  primarily 
liable  (C).  In  order  to  put  this  proof  of  presentment  (to 
C)  and  dishonor,  (by  C)  in  such  a  form  that  the  owner  of 
the  bill  of  exchange  may  prove  his  right  to  proceed  against 
D  without  too  great  an  expense  or  inconvenience,  the  cus- 
tom of  having  a  "protest"  drawn  up  was  instituted.  This 
formal  "protest"  has  always  been  accepted  as  sufficient 
evidence  of  the  demand  and  dishonor.  Under  the  present 
Negotiable  Instruments  Law  it  is  absolutely  necessary.  No 
protest  is  necessary  to  hold  the  acceptor  liable  for  the 
principal  sum.^  "The  person  'primarily'  liable  on  an  in- 
strument is  a  person  who  by  the  terms  of  the  instrument 
is  absolutely  required  to  pay  the  same.  All  other  parties 
are  '  secondarily '  liable ' ' :  Neg.  Inst.  Law,  Rem.  &  Bal.  Code, 
§  3582. 

1  7  Cyc.  Law  &  Proc,  p.  1053.       133;   Lang  v.  Brailsford,   1  Bay 
a  Eice  v.  Hogan,  8  Dana  (Ky.),       (S.  C),  222. 


232  LAW  FOB  NOTARIES  PUBLIC. 

§  141.  Notary  may  Protest. — ^The  Negotiable  Instru- 
ments Law  says  that  a  protest  may  be  made  by  a  notary 
public;  [a]  and  the  law  on  notaries  says  that  he  may  trans- 
act and  perform  all  matters  and  things  relating  to  protests, 
protesting  bills  of  exchange  and  promissory  notes,  and  such 
other  duties  as  pertain  to  that  office  by  the  custom  and  laws 
merchant,  [b]  It  has  been  held  in  a  number  of  cases  that 
a  notary  may  protest  a  bill  or  note  notwithstanding  the  fact 
he  has  an  interest  in  the  paper.^  In  a  New  York  case  it  was 
held  that  the  cashier  of  a  bank,  who  is  also  principal  maker 
of  a  note  owned  by  the  bank,  may  legally  protest  the  same 
as  a  notary  public.^  And  in  an  Alabama  case  it  was  held 
the  fact  that  the  notary  is  the  son  of  the  holder  of  the  bill 
protested  is  no  objection  to  his  making  the  protest.^ 

The  protest  should  be  made  by  the  notary  in  person*  and 
by  the  same  notary  who  presented  and  noted  the  bill.**  The 
protest  cannot  properly  be  made  by  a  clerk  or  deputy  of 
a  notary;  the  law  gives  verity  to  his  official  acts  when 
properly  verified  and  not  to  those  performed  by  his  clerk.® 
"The  protest  ....  must  be  under  the  hand  and  seal  of 
the  notary  making  it":  Neg.  Inst.  Law,  Eem.  &  Bal.  Code, 
§  3543. 

[a]  "Protest  may  be  made  by, — ^1.  A  notary  public  ....":  Laws 
1899,  p.  367,  §  154;  2  Eem.  &  Bal.  Code,  §  3544. 

[b]  "Every  duly  qualified  notary  public  is  authorized  in  any  county 
in  this  state,  to  transact  and  perform  all  matters  and  things  relating 
to  protests,  protesting  bills  of  exchange  and  promissory  notes,  and 
such  other  duties  as  pertain  to   that  office  by  the   custom   and  laws 

1  Moreland  v.  Citizens'  Bank,  3  Eason  v.  Isbell,  42  Ala.  456. 
97  Ky.  211,  30  S.  W.  637;  Bead  4  7  Cyc.  Law  &  Proc,  p.  1055; 
V.  Commonwealth  Bank,  1  T.  B.  Donegan  v.  Wood,  49  Ala.  242, 
Mon.  (Ky.)  91,  15  Am.  Dec.  86;  20  Am.  Eep.  275;  Cribbs  v.  Ad- 
Nelson  V.  Killingley  Bank,  69  ams,  13  Gray  (Mass.),  597; 
Fed.  798,  16  C.  C.  A.  425.  Con-  Ocean  Nat.  Bank  v.  Williams,  102 
tra:  Herkimer  County  Bank  v.  Mass.  141;  Sacrider  v.  Brown,  3 
Cox,  21  Wend.  (N.  Y.)  119,  34  McLean  (U.  S.),  481,  Fed.  Cas. 
Am.  Dec.  220;  Monongahela  Bank  No.    12,205. 

V.  Porter,  2  Watts  (Pa.),  141.  5  Commercial    Bank    v.    Barks- 

2  Dykman    v.    Northbridge,     1  dale,    36    Mo.    563;     ComTnercial 
N.    Y.    App.    Div.    26,   36    N.    Y.  Bank  v.  Varnum,  49  N.  Y.  209. 
Supp.  962.  «  Note  5. 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  233 

mercliant  ....":  Laws  1890,  p.  474,  §  4;  1  H.  C,  §332;  Bal.  Code, 
8  248;  2  Eem.  &  Bal.  Code,  §  8298. 

§  142.  Place  of  Protest. — "A  bill  must  be  protested  at 
the  place  where  it  is  dishonored,  except  that  when  a  bill 
drawn  payable  at  the  place  of  business,  or  residence,  of 
some  person  other  than  the  drawee,  has  been  dishonored  by 
nonacceptance,  it  must  be  protested  for  nonpayment  at  the 
place  where  it  is  expressed  to  be  payable,  and  no  further 
presentment  for  payment  to,  or  demand  on,  the  drawee  is 
necessary":  Neg.  Inst.  Law,  Rem,  &  Bal.  Code,  §3546. 

§  143.  Time  Protest  must  be  Made. — "When  a  bill  is 
protested,  such  protest  must  be  made  on  the  day  of  its  dis- 
honor, unless  delay  is  excused  as  herein  provided.  When 
a  bill  has  been  duly  noted,  the  protest  may  be  subsequently 
extended  as  of  the  date  of  the  noting":  Neg.  Inst.  Law, 
Rem,  &  Bal.  Code,  §  3545.  The  protesting  should  be  done 
during  business  hours  of  the  very  day  it  is  dishonored.^ 
Inevitable  accident  would  be  the  only  excuse  for  not  noting 
a  bill  for  protest  on  the  day  it  is  dishonored,^  "Protest  is 
dispensed  with  by  any  circumstances  which  would  dispense 
with  notice  of  dishonor.  Delay  in  noting  or  protesting  is 
excused  when  delay  is  caused  by  circumstances  beyond  the 
control  of  the  holder  and  not  imputable  to  his  default, 
misconduct,  or  negligence.  When  the  cause  of  delay  ceases 
to  operate,  the  bill  must  be  noted  or  protested  with  rea- 
sonable diligence":  Neg.  Inst,  Law,  Rem,  &  Bal,  Code, 
§3549,  "Where  the  day,  or  the  last  day,  for  doing  any 
act  herein  required  or  permitted  to  be  done  falls  on  Sunday 
or  on  a  holiday,  the  act  may  be  done  on  the  next  succeeding 
secular  or  business  day":  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §  3584. 

1  Crenshaw  v.  MeKiernan,  Mi-  Stewart,  17  How.  (U.  S.)  606,  15 

nor  (Ala.),  295;  Bead  v.  Common-  L.  ed.  228. 

wealth  Bank,  1  T,  B.  Mon.  (Ky.)  2  Hudson  v.  State  Bank,  3  Port. 

91,  15  Am.  Dec.  86;  Cookendorfer  (Ala.)  340;  Mallory  v.  Kirwan,  2 

V.  Preston,  4  How,  (U.  S.)    317,  Ball,  (Pa,)  192,  1  L.  ed.  344. 
11    L.    ed.    992;    Dennistoun    v. 


234  LAW  FOE  NOTARIES  PUBLIC. 

§  144.  Steps  in  Protest. — Protesting  consists  of  two 
steps.  The  first  is  the  "noting"  of  the  bill;  and  the  second 
is  the  extending  of  this  note  into  a  full  and  complete  state- 
ment properly  called  "a  protest."  "When  a  bill  is  pro- 
tested, such  protest  must  be  made  on  the  day  of  its  dishonor, 
unless  delay  is  excused  as  herein  provided.  When  a  bill 
has  been  duly  noted,  the  protest  may  be  subsequently  ex- 
tended as  of  the  date  of  the  noting":  Neg.  Inst.  Law,  Rem. 
&  Bal.  Code,  §  3545. 

§  145.  The  "Noting."— The  "noting"  of  a  bill  is  merely 
a  preliminary  step  to  the  protest;^  it  consists  of  a  memo- 
randum made  by  the  notary,  usually  containing  his  initials, 
the  date  of  the  day,  month  and  year  when  such  presentment 
was  made,  the  reason,  if  any  is  assigned,  for  nonaeceptance 
or  nonpayment  and  the  amount  of  the  noting  charges.^ 
The  "noting"  is  not  indispensable.  It  is  part  of  the  protest 
if  the  protest  proper  is  not  written  out  on  the  same  day; 
the  protest  proper  then  refers  back  to  the  time  the  "noting" 
was  done.  "When  a  bill  has  been  duly  noted,  the  protest 
may  be  subsequently  extended  as  of  the  date  of  the  not- 
ing": Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3545.  A  notary 
should  always  "note"  the  protest  at  the  time  of  demand 
if  refusal  is  made.  The  "noting"  is  usually  made  on  a 
ticket  attached  to  the  bill.^    For  example: 

FORM  LXV. 

J.  D.    Dec.  10,  1910. 

No  funds.     Charges  $ . 


§  146.  The  Protest. — The  protest  proper  is  the  formal 
instrument  drawn  up  by  the  notary.    "The  protest  must  be 

1  Leftley  v.  Mills,  4  Term  Eep.  Eep.  713.  Eeasons  "noted" 
170;  2  Daniel  Neg.  Inst.,  4tli  ed.,  would  be,  for  example:  "No  ef- 
p.  10;  Chaters  v.  Bell,  4  Esp.  N.  fects";  "No  account";  "Refuse  to 
P.  48;  Bailey  v.  Dozier,  6  How.  pay";  "No  advice." 

(U.  S.)  23,  12  L.  ed.  328;  Dennis-  3  Benj.     Chalmers'     Bills     and 

toun  V.  Stewart,  17  How.  (U.  S.)  Notes,    p.    177;    Chitty   on    Bills, 

606,  15  L.  ed.  228.  13th   Am.    ed.,  p.   373;    Smith   v. 

2  Gale  V.  Walsh,  5  Term    Rep.  Roach,  7  B.  Mon.   (Ky.)   17. 
S39;  Rogers  v.  Stephens,  2  Teim 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  235 

annexed  to  the  bill,  or  must  contain  a  copy  thereof,  and 
must  be  under  the  hand  and  seal  of  the  notary  making  it, 
and  must  specify:  (1)  The  time  and  place  of  presentment; 
(2)  The  fact  that  presentment  was  made  and  the  manner 
thereof;  (3)  The  cause  or  reason  for  protesting  the  bill; 
(4)  The  demand  made  and  the  answer  given,  if  any,  or  the 
fact  that  the  drawee  or  acceptor  could  not  be  found":  Neg. 
Inst.  Law,  Rem.  &  Bal.  Code,  §  3543. 

Although  the  law-merchant  never  demanded  that  the  cer- 
tificate of  protest  state  that  notice  of  dishonor  had  been 
given  to  those  secondarily  liable,  yet,  because  statutes  gen- 
erally have  made  a  recital  to  that  effect  prima  facie  evi- 
dence that  notice  has  been  given,  it  has  become  the  custom 
to  set  that  fact  forth  in  the  certificate.^ [a]  If  the  notices 
of  dishonor  were  sent  by  mail,  the  addresses  of  those  to 
whom  the  notices  were  mailed  and  the  time  they  were 
mailed  should  be  set  forth  in  the  certificate.^ 

The  following  is  a  complete  list  of  what  a  "protest" 
should  set  out: 

1.  Copy  of  the  instrument  on  which  protest  is  made. 

2.  Venue. 

3.  "Words  '  *  I  hereby  certify ' '  or  some  words  to  that  effect. 

4.  Time  of  presentment.^ 

5.  Name  and  office  (notary  public)  of  the  one  making 
the  demand. 

6.  Statement  that  notary  had  the  original  instrument  with 
him  at  time  of  demand. 

7.  Name  of  person  requesting  the  demand  and  protest. 

8.  Name  of  person  on  whom  demand  was  made. 

9.  Place  where  demand  was  made. 

10.  Statement  that  demand  was  made  and  the  manner  in 
which  it  was  made. 

11.  The  cause  or  reason  for  protesting  the  bill. 

1  Kellogg  V.  Pacific  Box  Fac-  6  La.  Ann.  104;  Wamsley  t.  Riv- 
tOTj,  57  Cal.  327;  O'Niel  v.  Dick-       ers,  34  Iowa,  463. 

son,  11  Ind.  253;  Page  v.  Gilbert,  s  It  is  not  necessary  that  the 

60  Me.   485;    Burk  v.   Shreve,   39  exact    hour    of    presentment    be 

N.  J.  L.  214.  stated:     Cayuga  County  Bank  T. 

2  Curry    v.    Mobile     Bank,     8  Hunt,  2  Hill  (N.  Y.),  635. 
Port.  (Ala.)  360;  Knox  v.  Buhler, 


236  LAW  FOB  NOTARIES  PUBLIC. 

12.  The  demand  made  and  the  answer  given,  if  any,  or 
the  fact  that  the  drawee  or  acceptor  could  not  be  found. 

13.  Usual  words  of  protest.     (See  Form  under  §  147.) 

14.  Certificate  of  notary  that  he  has  mailed  in  the  post- 
office  with  postage  paid  notices  of  dishonor  to  all  those  sec- 
ondarily liable. 

15.  Statement  that  mailing  was  done  within  the  time  al- 
lowed after  dishonor. 

16.  Names  and  addresses  of  all  those  to  whom  notices 
were  mailed,  adding  that  said  addresses  were  their  reputed 
places  of  residence  and  the  postoffice  nearest  thereto. 

17.  Time  when  and  names  and  addresses  of  persons  on 
whom  notary  made  personal  service. 

18.  Date  and  statement  that  notary  affixed  his  notarial 
seal. 

19.  Charges. 

20.  Signature  of  notary,  followed  by  words  "notary  pub- 
lic" and  his  place  of  residence,  [b] 

21.  Seal  of  notary,  [b] 

[a]  "Every  notary  public  is  required  to  keep  a  true  record  of  all 
notices  of  protest  given  or  sent  by  Mm,  with  the  time  and  manner  in 
which  the  same  were  given  or  sent,  and  the  names  of  all  the  parties  to 
whom  the  same  were  given  or  sent,  with  the  copy  of  the  instrument 
in  relation  to  which  the  notice  is  served,  and  of  the  notice  itself;  said 
record,  or  a  copy  thereof,  duly  certified  under  the  hand  and  seal  of  the 
notary  public,  or  county  clerk  having  the  custody  of  the  original  record, 
shall  be  competent  evidence  to  prove  the  facts  therein  stated,  but  the 
same  may  be  contradicted  by  other  competent  evidence":  Laws  1890, 
p.  474,  §  6;  1  H.  C,  §  334;  Bal.  Code,  §  250;  Eem.  &  Bal.  Code,  §  8300. 

[b]  "It  shall  not  be  necessary  for  a  notary  public,  in  certifying  an 
oath  to  be  used  in  any  of  the  courts  in  this  state,  to  append  an  im- 
pression of  his  official  seal,  but  in  all  other  cases  when  the  notary  shall 
sign  any  instrument  officially,  he  shall,  in  addition  to  his  name  and 
the  words  'notary  public,'  add  his  place  of  residence  and  aflSx  his 
official  seal":  Laws  1890,  p.  474,  §5;  1  H.  C,  §333;  Bal.  Code,  §249; 
Rem.  &  Bal.  Code,  §  8299. 

§  147.  Form  of  Protest. — The  following  is  a  complete 
form  of  a  protest: 


PEOTESTING  NEGOTIABLE  INSTRUMENTS.  237 

FOEM  LXVL 

Protest. 
Copy  of  Note. 

$400.  Seattle,  Wash.,  Oct.  10,  1910. 

Sixty  days  after  date,  without  grace,  I  promise  to  pay  to  the  order 
of  William  Stiles  four  hundred  dollars  in  gold  coin  of  the  United 
States  of  America,  of  present  standard  weight  and  fineness,  with  in- 
terest thereon,  in  like  gold  coin,  at  the  rate  of  eight  per  cent  per 
annum  from  date  hereof  until  paid,  for  value  received.  Interest  to  be 
paid  monthly,  and  if  not  so  paid,  the  whole  sum  of  both  principal  and 
interest  to  become  immediately  due  and  collectible,  at  the  option  of 
the  holder  of  this  note.  And  in  case  suit  or  action  is  instituted  to 
collect  this  note,  or  any  portion  thereof,  I  promise  and  agree  to  pay,  in 
addition  to  the  costs  and  disbursements  provided  by  statute,  twenty- 
five  dollars  in  like  gold  coin,  for  attorneys'  fees  in  said  suit  or  action. 

Due  December  10,  1910,  at  office  of  Frank  Stiles,  100  2d  Ave., 
Seattle,  Wash. 

No.  410.  FRANK   STILES. 

(Indorsed  by  John  Smith,  Henry  Jones  and  John  Jones.^ 

State  of  Washington, 
County  of  King, — ss.[a] 

I  hereby  certify,  that  on  this  10th  day  of  December,  one  thousand 
nine  hundred  and  ten,  I,  John  Doe,  a  notary  public  in  and  for  the 
state  of  Washington,  duly  appointed,  commissioned  and  sworn,  and 
residing  in  Seattle  in  said  county  and  state,  at  the  request  of  William 
Stiles,  went  with  the  original  instrument,  a  copy  of  which  is  attached 
hereto,  and  presented  the  same  to  Frank  Stiles,  100  2d  ave.,  Seattle, 
Washington,  the  maker  thereof,  and  demanded  payment  thereon,  which 
was  refused,  saying:  "I  cannot  pay  it."  Whereupon  I,  the  said  notary, 
at  the  request  of  the  aforesaid  William  Stiles,  did  protest,  and  by  these 
presents  do  solemnly  protest,  as  well  against  the  makers  of  said  in- 
strument, the  indorsers  thereof,  as  against  all  others  whom  it  doth  or 
may  concern,  for  exchange,  re-exchange  and  all  costs,  charges,  dam- 
ages and  interest  already  incurred  by  reason  of  the  nonpayment  of  said 
instrument.  And  I,  the  said  notary,  do  hereby  certify  that  by  the 
first  mail  after  the  time  of  such  protest,  due  notice  thereof  was  put 
in  the  postoffice  at  Seattle,  Washington,  with  postage  paid  thereon  as 
follows:  Notice  for  John  Smith,  directed  to  420  1st  Ave.,  Ballard, 
Wash.  Notice  for  Henry  Jones,  directed  to  200  Main  St.,  Spokane, 
Wash. — the  above-named  places  being  the  reputed  places  of  residence, 
respectively,  of  the  persons  to  whom  such  notice  was  directed  and  the 
postoffice  nearest  thereto.  I  do  hereby  further  certify,  that  upon  the 
said  10th  day  of  December,  1910,  I  personally  served  due  notice  of 
said  protest  as  follows:  Notice  to  John  Jones,  served  at  304  Central 
Bldg.,  Seattle,  Wash. 


238  LAW  FOR  NOTARIES  PUBLIC. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  afiixed  my 
notarial  seal  on  this  10th  day  of  December,  1910. 

Noting    $  .50 

Demand    50 

Protest    1.00 

Registering    50 

Mileage    20 

Postage    04 

3  Notices 60 


Total.  .$3.34 
[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington  residing  at  Seattle. 

In  this  case  the  notary  learned  the  addresses  of  ths  in- 
dorsers  from  Frank  Stiles.  A  notary  must  make  every 
effort  to  learn  of  the  whereabouts  of  the  indorsers  if  no 
addresses  have  been  added  as  to  where  notices  should  be 
sent.  - 

[a]  If  the  bill  is  a  foreign  bill  the  venue  should  be: 

POEM  Lxvn. 

United  States  of  America, 
State  of  Washington, 
County  of  ,  — ss. 

§  148.  Waiver  of  Protest. — "Protest  is  dispensed  with 
by  any  circumstances  which  would  dispense  with  notice  of 
dishonor  .  .  .  .":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code, 
§  3549.  "Notice  of  dishonor  may  be  waived,  either  before 
the  time  of  giving  notice  has  arrived,  or  after  the  omission 
to  give  due  notice,  and  the  waiver  may  be  express  or  im- 
plied": Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3499.  "Where 
the  waiver  is  embodied  in  the  instrument  itself,  it  is  bind- 
ing upon  all  parties;  but  where  it  is  written  above  the  sig- 
nature of  an  indorser,  it  binds  only  him":  Neg.  Inst.  Law, 
Rem.  &  Bal.  Code,  §  3500.  "A  waiver  of  protest,  whether 
in  case  of  a  foreign  bill  of  exchange  or  other  negotiable 
instrument,  is  deemed  to  be  a  waiver  not  only  of  a  formal 
protest,  but  also  of  presentment  and  notice  of  dishonor": 
Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3501.  The  waiver  is 
often  in  the  form  of  a  slip  of  paper  pinned  to  the  instru- 
ment containing  the  words : 


PROTESTING  NEGOTIABLE  INSTEUMENTS.  239 

FORM  LXVIII. 

"Presentment,  Demand  and  Notice  Waived,"  or  "No 
Protest." 

PROTEST  FOB  BETTER  SECURITY. 

§  149.  When  Allowed. — "Where  the  acceptor  has  been 
adjudged  a  bankrupt  or  an  insolvent  or  has  made  an  as- 
signment for  the  benefit  of  creditors,  before  the  bill  ma- 
tures, the  holder  may  cause  the  bill  to  be  protested  for 
better  security  against  the  drawer  and  indorsers":  Neg. 
Inst.  Law,  Rem.  &  Bal.  Code,  §  3548.  Protesting  for  better 
security  was  known  under  the  "law-merchant";  the  first 
reported  case  is  in  Lord  Raymond's  Reports.^  In  that  case 
the  drawee  absconded  before  the  day  of  payment,  and  it 
was  said  that  the  man  to  whom  the  bill  was  payable  could 
protest  it,  to  have  better  security  for  the  payment,  and  to 
give  notice  to  the  drawer  of  the  absconding  of  the  drawee. 
It  was  also  held  that  upon  the  arrival  of  the  day  of  pay- 
ment it  should  be  protested  again  for  nonpayment.  The 
only  advantage  of  such  protest  is  to  prepare  the  way  for 
a  second  acceptance  for  honor  and  to  give  the  prior  obligors 
opportunity  to  protect  themselves  against  loss  on  re- 
exchange  and  return  of  the  bill.^  Nor  would  such  parties 
be  liable  to  an  action  on  the  part  of  the  holder  before  the 
maturity  of  the  bill.* 

Though  the  holder  does  not  protest  the  bill  on  the  ab- 
sconding* of  the  drawee  or  his  bankruptcy  or  insolvency^ 
neither  the  drawer  nor  indorsers  will  be  discharged.® 

*  Anonymous,  1  Ld.  Eaym.  743.  that  it  would  be  a  valid  reason 

2  Ex  parte  Wackerbath,  5  Ves.  because  it  is  a  good  and  valid 
Jr.  574.  cause  under  the  "law-merchant," 

3  Chitty  on  Bills,  385.  and   the   Negotiable   Instruments 

4  The  ^Yashington  statute  (Rem.  Law,  section  3586  of  the  Rem- 
&  Bal.  Code,  §  3548)  does  not  ington  and  Ballinger's  Code,  is  as 
enumerate  the  "absconding"  of  follows:  "In  any  case  not  pro- 
the  drawee  as  one  of  the  cases  in  vided  for  in  this  act  the  rules  of 
which  a  protest  for  better  secur-  the  law-merchant  shall  govern." 
ity  is  allowed;  but  it  is  probable  6  Chitty  on  Bills,  p.  385. 


240  LAW  FOR  NOTARIES  PUBLIC. 

ACCEPTANCE  FOR  HONOB. 

§  150.  When  Allowable. — "Where  a  bill  of  exchange 
has  been  protested  for  dishonor  by  nonacceptance  or  pro- 
tested for  better  security  and  is  not  overdue,  any  person 
not  being  a  party  already  liable  thereon  may,  with  the  con- 
sent of  the  holder,  intervene  and  accept  the  bill  supra  pro- 
test for  the  honor  of  any  party  liable  thereon  or  for  the 
honor  of  the  person  for  whose  account  the  bill  is  drawn. 
The  acceptance  for  honor  may  be  for  part  only  of  the  sum 
for  which  the  bill  is  drawn;  and  where  there  has  been  an 
acceptance  for  honor  for  one  party,  there  may  be  a  further 
acceptance  by  a  different  person  for  the  honor  of  another 
party":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §3551. 

§  151.  Form:  Presiimption. — **An  acceptance  for  honor 
supra  protest  must  be  in  writing  and  indicate  that  it  is  an 
acceptance  for  honor,  and  must  be  signed  by  the  acceptor 
for  honor":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §3552. 
"Where  an  acceptance  for  honor  does  not  expressly  state 
for  whose  honor  it  is  made,  it  is  deemed  to  be  an  acceptance 
for  the  honor  of  the  drawer":  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §3553.  "The  acceptor  for  honor  is  liable  to  the 
holder  and  to  all  parties  to  the  bill  subsequent  to  the  party 
for  whose  honor  he  has  accepted":  Neg.  Inst.  Law,  Rem.  & 
Bal.  Code,  §  3554.  Examples  of  acceptance  are  the  follow- 
ing; 

FORM  LXIX. 

"Accepted  under  protest,  for  honor  of  Henry  Jones,  and 
will  be  paid  for  his  account  if  regularly  protested,  and 
refused  when  due. 

"WILLIAM  STILES." 

Usually,  however,  the  acceptance  is  more  simple;  for  ex- 
ample, "Accepted  supra  protest.  William  Stiles,"  when 
it  would  be  for  the  honor  of  the  drawer,  "Accepted  S.  P. 
for  honor  of  Henry  Smith.     William  Stiles,"  is  often  used. 

§  152.  When  Acceptor  for  Honor  Liable. — "The  ac- 
ceptor for  honor  by  such  acceptance  engages  that  he  will  on 
due  presentment  pay  the  bill  according  to  the  terms  of  his 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  241 

acceptance:  Provided,  it  shall  not  have  been  paid  by  the 
drawee;  and  provided  also  that  it  shall  have  been  duly  pre- 
sented for  payment  and  protested  for  nonpayment  and 
notice  of  dishonor  given  him":  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §3555.  "Where  a  dishonored  bill  has  been  accepted 
for  honor  supra  protest  or  contains  a  reference  in  case  of 
need,  it  must  be  protested  for  nonpayment  before  it  is  pre- 
sented for  payment  to  the  acceptor  for  honor  or  referee  in 
case  of  need":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3557. 

§  153.  Maturity  of  Bill  Payable  After  Sight.— "Where  a 
bill  payable  after  sight  is  accepted  for  honor,  its  maturity 
is  calculated  from  the  date  of  the  noting  for  nonacceptance 
and  not  from  the  date  of  the  acceptance  for  honor":  Neg, 
Inst.  Law,  Rem.  &  Bal.  Code,  §  3556. 

§  154.    Time  of  Presentment  to  Acceptor  for  Honor. — 

"Presentment  for  payment  to  the  acceptor  for  honor  must 
be  made  as  follows:  (1)  If  it  is  to  be  presented  in  the  place 
where  the  protest  for  nonpayment  was  made,  it  must  be 
presented  not  later  than  the  day  following  its  maturity. 
(2)  If  it  is  to  be  presented  in  some  other  place  than  the  place 
where  it  was  protested,  then  it  must  be  forwarded  within  the 
time  specified  in  section  3494":  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §  3458.  "The  provisions  of  section  3472  apply  where 
there  is  delay  in  making  presentment  to  the  acceptor  for 
honor  or  referee  in  ease  of  need":  Neg.  Inst,  Law,  Rem.  & 
Bal.  Code,  §  3559, 

§  155.  Protest  Necessary  When  Acceptor  for  Honor  Dis- 
honors.— "When  the  bill  is  dishonored  by  the  acceptor  for 
honor  it  must  be  protested  for  nonpayment  by  him":  Neg. 
Inst,  Law,  Rem,  &  Bal.  Code,  §  3560. 

PAYMENT  FOR  HONOB. 

§  156.  Who  may  Make. — "Where  a  bill  has  been  pro- 
tested for  nonpayment,  any  person  may  intervene  and  pay 
it  supra  protest  for  the  honor  of  any  person  liable  thereon 
or  for  the  honor  of  the  person  for  whose  account  it  was 
drawn":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3561. 
16 


242  LAW  FOR  NOTAEIES  PUBLIC. 

§  157.    Notary's    Attestation:  Declaration   by    Payer. — 

"The  payment  for  honor  supra  protest  in  order  to  operate 
as  such  and  not  as  a  mere  voluntary  payment  must  be  at- 
tested by  a  notarial  act  of  honor,  which  may  be  appended 
to  the  protest  or  form  an  extension  to  it":  Neg.  Inst.  Law, 
Rem.  &  Bal.  Code,  §  3562.  "The  notarial  act  of  honor  must 
be  founded  on  a  declaration  made  by  the  payer  for  honor, 
or  by  his  agent  in  that  behalf,  declaring  his  intention  to 
pay  the  bill  for  honor  and  for  whose  honor  he  pays":  Neg. 
Inst.  Law,  Rem.  &  Bal.  Code,  §  3563.  The  following  would 
be  a  notarial  act  of  honor: 

FORM  LXX. 

I  hereby  certify  that  William  Stiles  declares  that  he 
pays  the  attached  bill  of  exchange  supra  protest  for  honor 
of  John  Jones. 

Witness  my  hand  and  seal  this  10th  day  of  December, 
1910. 

[Notary's  Seal]  JOHN  DOB, 

Notary  Public  in  and  for  the  State  of  Washington,  Residing 
at  Seattle. 

§  158.  Preference  of  Parties  Offering  Payment. — 
"Where  two  or  more  persons  offer  to  pay  a  bill  for  the 
honor  of  different  parties,  the  person  whose  payment  will 
discharge  most  parties  to  the  bill  is  to  be  given  the  prefer- 
ence"; Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3564. 

NOTICE  OF  DISHONOR. 

§  159.  Necessity  for  Notice. — "Except  as  herein  other- 
wise provided,  when  a  negotiable  instrument  has  been  dis- 
honored by  nonacceptance  or  nonpayment,  notice  of  dis- 
honor must  be  given  to  the  drawer  and  to  each  indorser, 
and  any  drawer  or  indorser  to  whom  such  notice  is  not 
given  is  discharged":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code, 
§3479.  "Notice  of  dishonor  is  not  required  to  be  given  to 
the  drawer  in  either  of  the  following  cases:  (1)  When  the 
drawer  and  drawee  are  the  same  person;  (2)  where  the 
drawee  is  a  fictitious  person  or  a  person  not  having  capacity 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  243 

to  contract;  (3)  When  the  drawer  is  the  person  to  whom 
the  instrument  is  presented  for  payment;  (4)  "Where  the 
drawer  has  no  right  to  expect  or  require  that  the  drawee  or 
acceptor  will  honor  the  instrument;  (5)  where  the  drawer 
has  countermanded  payment":  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §3504.  "Notice  of  dishonor  is  not  required  to  be 
given  to  an  indorser  in  either  of  the  following  cases:  (1) 
Where  the  drawee  is  a  fictitious  person  or  a  person  not  hav- 
ing capacity  to  contract,  and  the  indorser  was  aware  of  the 
fact  at  the  time  he  indorsed  the  instrument;  (2)  where  the 
indorser  is  the  person  to  whom  the  instrument  is  presented 
for  payment;  (3)  where  the  instrument  was  made  or  ac- 
cepted for  his  accommodation":  Neg.  Inst.  Law,  Rem.  & 
Bal.  Code,  §  3505. 

Notice  of  dishonor  means  notification  of  dishonor;  the 
mere  fact  that  the  party  to  be  charged  has  knowledge  of 
the  dishonor  will  not  take  the  place  of  a  notice.^  The 
presence  of  one  of  the  indorsers  of  a  note  when  the  holder 
presented  it  to  the  maker  at  maturity  for  payment  has  been 
held  not  to  amount  to  constructive  notice.^  "Notice  of  dis- 
honor is  dispensed  with  when,  after  the  exercise  of  reason- 
able diligence,  it  cannot  be  given  to  or  does  not  reach  the 
parties  sought  to  be  charged":  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §  3502. 

§  160.  Notary  may  Give  Notice. — "The  notice  may  be 
given  by  or  on  behalf  of  the  holder,  or  by  or  on  behalf  of 
any  party  to  the  instrument  who  might  be  compelled  to  pay 
it  to  the  holder,  and  who,  upon  taking  it  up,  would  have  a 
right  to  reimbursement  from  the  party  to  whom  the  notice 
is  given":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3480.  "No- 
tice of  dishonor  may  be  given  by  an  agent  either  in  his  own 
name  or  in  the  name  of  any  party  entitled  to  give  notice, 
whether  that  party  be  his  principal  or  not" :  Neg.  Inst.  Law, 
Rem.  &  Bal.  Code,  §  3481.  "Where  the  instrument  has  been 
dishonored  in  the  hands  of  an  agent,  he  may  either  himself 

1  Jagger  v.  Nat.  G.  A.  Bank,  53  Gratt.  (Va.)  559;  4  Am.  &  Eng. 
Minn.    386,   55    N.   W.    545;    Old      Ency.  of  Law,  2d  ed.,  p.  397. 

Dominion    Bank  v.  McVeigh,    29  '  ^^^°*    ^-    ^P^"*^"'    ^    ^°°*- 

^  '  136. 


244  LAW  FOB  NOTARIES  PUBLIC. 

give  notice  to  the  parties  liable  thereon,  or  he  may  give 
notice  to  his  principal.  If  he  give  notice  to  his  principal, 
he  must  do  so  within  the  same  time  as  if  he  were  the  holder, 
and  the  principal  upon  the  receipt  of  such  notice  has  himself 
the  same  time  for  giving  notice  as  if  the  agent  had  been 
an  independent  holder":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code, 
§3484.  "Every  notary  public  is  required  to  keep  a  true 
record  of  all  notices  of  protest  (notices  of  dishonor)  given 
or  sent  by  him,  with  the  time  and  manner  in  which  the  same 
were  given  or  sent,  and  the  name  of  all  the  parties  to  whom 
the  same  were  given  or  sent,  with  the  copy  of  the  instru- 
ment in  relation  to  which  the  notice  is  served,  and  of  the 
notice  itself  .  .  .  .":  Laws  1890,  p.  474,  §  6;  Rem.  &  Bal. 
Code,  §  8300.  "Every  duly  qualified  notary  public  is  au- 
thorized in  any  county  in  this  state  to  transact  and  perform 
all  matters  and  things  relating  to  protests,  protesting  bills 
of  exchange  and  promissory  notes,  and  such  other  duties  as 
pertain  to  that  office  by  the  custom  and  law-merchant": 
Laws  1890,  p.  474,  §  4 ;  Rem.  &  Bal.  Code,  §  8298.  It  would 
seem  from  the  two  statutes  just  quoted  that  the  notary  in 
Washington  gives  the  notices  of  dishonor  as  a  public  officer; 
it  is  his  official  duty,  neglect  of  which  he  may  be  held  liable 
for  on  his  official  bond.^  A  mere  stranger  to  the  paper  can- 
not give  notice  of  dishonor  ;2  such  a  notice  would  be  of  no 
avail  to  any  party.* 

§  161.  Notice  to  Whom. — "Except  as  herein  otherwise 
provided,  when  a  negotiable  instrument  has  been  dishonored 
by  nonacceptance  or  nonpayment,  notice  of  dishonor  must 
be  given  to  the  drawer  and  to  each  indorser,  and  any  drawer 
or  indorser  to  whr-m  such  notice  is  not  given  is  discharged": 

1  Tevis  V.  Randall,  6  Cal.  632,  (N.  Y.)  173;  Brower  v.  Wooten, 
65  Am.  Dec.  547;  Barr  v.  Marsh,  4  N.  C.  507,  7  Am.  Dec.  692; 
9  Yerg.  (Tenn.)  253;  Wheeler  v.  Payne  v.  Patrick,  21  Tex.  680; 
State,  9  Heisk.  (Tenn.)  393.  Lawrence  v.  Miller,  16  N.  Y.  235, 
Notice  ma'y  be  given  by  a  no-  8  Brailsford  v.  Williams,  15 
tary  employed  by  a  bank  to  Md.  150, 74  Am.  Dec.  559;  Brower 
which  the  bill  has  been  indorsed  v.  Wooten,  4  N.  C.  507,  7  Am. 
"for  collection  only":  Warren  v.  Dec.  692;  Jagger  v.  Nat.  G.  A. 
Gilman,  17  Me.  360.  Bank,   53    Minn.    386,   55   N.   W. 

2  Chanoine  v.  Fowler,  3  Wend.  545. 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  245 

Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §3479.  "Notice  of  dis- 
honor may  be  given  either  to  the  party  himself  or  to  hia 
agent  in  that  behalf":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code, 
§  3487.  "When  any  party  is  dead,  and  his  death  is  knoAvn 
to  the  party  giving  notice,  the  notice  must  be  given  to  a 
personal  representative,  if  there  be  one,  and  if  with  reason- 
able diligence  he  can  be  found.  If  there  be  no  personal 
representative,  notice  may  be  sent  to  the  last  residence  or 
last  place  of  business  of  the  deceased":  Neg.  Inst.  Law, 
Rem.  &  Bal.  Code,  §3488,  "Where  the  parties  to  be  noti- 
fied are  partners,  notice  to  any  one  partner  is  notice  to  the 
firm  even  though  there  has  been  a  dissolution":  Neg.  Inst. 
Law,  Rem.  &  Bal.  Code,  §  3489.  "Notice  to  joint  parties 
who  are  not  partners  must  be  given  to  each  of  them,  unless 
one  of  them  has  authority  to  receive  such  notice  for  the 
others":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §3490. 
"Where  a  party  has  been  adjudged  a  bankrupt  or  an  in- 
solvent, or  has  made  an  assignment  for  the  benefit  of  cred- 
itors, notice  may  be  given  either  to  the  party  himself  or  to 
his  trustee  or  assignee":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code, 
§  3491.  "Notice  of  dishonor  is  not  required  to  be  given  to 
the  drawer  in  either  of  the  following  cases:  (1)  Where  the 
drawer  and  drawee  are  the  same  person;  (2)  where  the 
drawee  is  a  fictitious  person  or  a  person  not  having  capacity 
to  contract;  (3)  when  the  drawer  is  the  person  to  whom 
the  instrument  is  presented  for  payment;  (4)  where  the 
drawer  has  no  right  to  expect  or  require  that  the  drawee 
or  acceptor  will  honor  the  instrument;  (5)  where  the 
drawer  has  countermanded  payment":  Neg.  Inst.  Law, 
Rem.  &  Bal.  Code,  §3504.  "Notice  of  dishonor  is  not  re- 
quired to  be  given  to  an  indorser  in  either  of  the  following 
cases:  (1)  Where  the  drawee  is  a  fictitious  person  or  a  per- 
son not  having  capacity  to  contract,  and  the  indorser  was 
aware  of  the  fact  at  the  time  he  indorsed  the  instrument; 
(2)  where  the  indorser  is  the  person  to  whom  the  instru- 
ment is  presented  for  payment;  (3)  where  the  instrument 
was  made  or  accepted  for  his  accommodation":  Neg.  Inst. 
Law,  Rem.  &  Bal.  Code,  §  3505. 


246  LAW  FOB  NOTARIES  PUBLIC. 

§  162.  Time  Notice  must  be  Sent. — "Notice  may  be 
given  as  soon  as  the  instrument  is  dishonored;  and  unless 
delay  is  excused  as  hereinafter  provided,  must  be  given 
within  the  time  fixed  by  this  act":  Neg.  Inst.  Law,  Rem.  & 
Bal.  Code,  §  3492.  "Where  the  person  giving  and  the  per- 
son to  receive  the  notice  reside  in  the  same  place,  notice  must 
be  given  within  the  following  times:  (1)  If  given  at  the 
place  of  business  of  the  person  to  receive  notice,  it  must 
be  given  before  the  close  of  business  hours  on  the  day  fol- 
lowing; (2)  if  given  at  his  residence,  it  must  be  given  be- 
fore the  usual  hours  of  rest  on  the  day  following;  (3)  if 
sent  by  mail,  it  must  be  deposited  in  the  postoffice  in  time 
to  reach  him  in  the  usual  course  on  the  day  following": 
Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §3493.  "Where  the 
person  giving  and  the  person  to  receive  notice  reside  in 
different  places,  the  notice  must  be  given  within  the  follow- 
ing times:  (1)  If  sent  by  mail,  it  must  be  deposited  in  the 
postoffice  in  time  to  go  by  mail  the  day  following  the  day 
of  dishonor,  or  if  there  be  no  mail  at  a  convenient  hour  on 
that  day,  by  the  next  mail  thereafter;  (2)  if  given  other- 
wise than  through  the  postoffice,  then  within  the  time  that 
notice  would  have  been  received  in  due  course  of  mail,  if 
it  had  been  deposited  in  the  postoffice  within  the  time  speci- 
fied in  the  last  subdivision":  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §3494.  "Delay  in  giving  notice  of  dishonor  is  ex- 
cused when  the  delay  is  caused  by  circumstances  beyond  the 
control  of  the  holder,  and  not  imputable  to  his  default, 
misconduct  or  negligence.  When  the  cause  of  delay  ceases 
to  operate,  notice  must  be  given  with  reasonable  dili- 
gence":^ Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3503.    If  the 

1  Examples  of  conditions  which  1  Am.  Dec.  141;  Hanauer  v.  An- 

would  be  considered  as  excusing  derson,     16     Lea     (Tenn.),     340. 

delay:    Prevalence  of  war:    Nor-  Where  delay  in  sending  the  no- 

ria  V.  Despard,  38  Md.  487;  House  tice  was  caused  by  the  absence  of 

V.    Adams,    48   Pa.    261,    86    Am.  holder     in     consequence     of     the 

Dec.  588;  Bynum  v.  Apperson,  9  sickness  of  his  wife,  it  was  held 

.Heisk.   (Tenn.)   632;  Billgerry  v.  not  to   be   excusable:     Turner  v. 

Branch,  19  Gratt.  (Va.)   393,  100  Leech,  4  Barn.  &  Aid.  451;  Muil- 

Am.   Dec.    679;    prevalence    of   a  man    v.    D'Eguino,    2    H.    Black, 

malignant      disease:      Tunno      v.  565;  Stainback  v.  State  Bank,  11 

Lague,  2  Johns.  Cas.  (N.  Y.)   1,  Gratt.   (Va.)  260;  Lenox  v.  Lev- 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  247 

parties  reside  in  countries  separated  by  seas  it  is  sufficient 
to  send  the  notice  by  the  next  succeeding  post.  "Where 
the  day,  or  the  last  day,  for  doing  any  act  herein  required 
or  permitted  to  be  done  falls  on  Sunday  or  on  a  holiday,  the 
act  may  be  done  on  the  next  succeeding  secular  or  business 
day":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §3584. 

§  163.    Place  of  Giving  Notice. — "Where  the  party  has  , 

added  an  address  to  his  signature,  notice  of  dishonor  must  ' 
be  sent  to  that  address ;  but  if  he  has  not  given  such  ad- 
dress, then  the  notice  must  be  sent  as  follows:  (1)  Either 
to  the  postoffice  nearest  to  his  place  of  residence,  or  to  the  ' 
postoffice  where  he  is  accustomed  to  receive  his  letters ;  or  , 
(2)  if  he  live  in  one  place,  and  have  his  place  of  business  \ 
in  another,  notice  may  be  sent  to  either  place ;  or  (3)  if  he 
is  sojourning  in  another  place,  notice  may  be  sent  to  the 
place  where  he  is  so  sojourning.  But  where  the  notice  is 
actually  received  by  the  party  within  the  time  specified  in 
this  act,  it  will  be  sufficient,  though  not  sent  in  accordance 
with  the  requirements  of  this  section":  Neg.  Inst.  Law, 
Rem.  &  Bal.  Code,  §  3498.  "Notice  of  dishonor  is  dispensed 
with  when,  after  the  exercise  of  reasonable  diligence,  it 
cannot  be  given  to  or  does  not  reach  the  parties  sought  to 
be  charged":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §3502 
What  "reasonable  diligence"  is  will  depend  on  the  circum- 
stances of  the  case;  no  general  rule  can  be  laid  down.  It 
must  be  such  diligence  as  men  of  business  usually  exercise 
when  their  interest  depends  upon  obtaining  correct  infor- 
mation.^ Inquiries  should  be  made  of  persons  likely  to 
know  of  the  indorser's  whereabouts,^  of  the  available  parties 
to  the  instrument,^  of  the  indorser's  agent,^  and  some  courts 

erett,  10  Mass.  1,  6  Am.  Dec.  97;  'Davis,  18  N.  J.  L.  276;  Lambert 

Fleming  v.  MeClure,  1  Brev.  (S.  ▼•  Ghiselin,  9  How.  (U.  S.)   552, 

C.)  428,  2  Am.  Dec.  671.  ^^  L.  ed.  254;  Brighton  Bank  v. 

Philbrick,  40  N.  H.  506. 

1  Palmer  v.  Whitney,  21    Ind.  3  g-jj  ^    ^^„gjj^   3    ^^    233; 
58;  In  re  Billings,  82  Minn.  387,  ^.j^^^   ^^    g^^.         ^^    ^j^     gg 
85  N.  W.  163;  Utica  Bank  v.  Ben-  ^^^^^  ^  2  ^a    Ann.  16. 
der,   21    Wend.    (N.   Y.)    643,   34          ,  Herbert  v.  Servin,  41  N.  J.  L. 
Am.  Dec.  281.  225;  Goodloe  v.  Godley,  13  Smedea 

2  Decatur     Branch     Bank     v.  &  M.   (Miss.)    233,  51  Am.  Dec. 
Pierce,  3   Ala.    321;    Winana  y.  150. 


248  LAW  FOR  NOTARIES  PUBLIC. 

hold  of  every  accessible  party  to  the  paper.^    Too  much 
'  trouble  cannot  be  taken  as  a  precaution. 

§  164.  Manner  of  Giving  Notice. — "The  notice  may  be 
in  writing  or  merely  oral,  and  may  be  given  in  any  terms 
which  sufficiently  identify  the  instrument,  and  indicate  that 
it  has  been  dishonored  by  nonacceptance  or  nonpayment. 
It  may  in  all  cases  be  given  by  delivering  it  personally  or 
through  the  mails":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code, 
§  3486.  "A  written  notice  need  not  be  signed,  and  an  insuf- 
ficient written  notice  may  be  supplemented  and  validated 
by  verbal  communication.  A  misdescription  of  the  instru- 
ment does  not  vitiate  the  notice  unless  the  party  to  whom 
the  notice  is  given  is  in  fact  misled  thereby":  Neg.  Inst. 
Law,  Rem.  &  Bal.  Code,  §  3485.  "Where  notice  of  dishonor 
is  duly  addressed  and  deposited  in  the  postoffice,  the  sender 
is  deemed  to  have  given  due  notice,  notwithstanding  any 
miscarriage  in  the  mails":  Neg.  Inst.  Law,  Rem.  &  Bal. 
Code,  §  3495.  "Notice  is  deemed  to  have  been  deposited  in 
the  postoffice  when  deposited  in  any  branch  postoffice  or  in 
any  letter-box  under  the  control  of  the  postoffice  depart- 
ment": Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3496.  "Where 
the  notice  is  actually  received  by  the  party  within  the  time 
specified  in  this  act,  it  will  be  sufficient,  though  not  sent  in 
accordance  with  the  require&ients  of  this  section  (§  3498)": 
Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §  3498.^  If  the  party  to 
whom  notice  must  be  given  does  not  live  where  the  postal 
department  reaches  him  in  the  usual  course  of  mail  delivery, 

5  Wolf  V.  Burgess,  59  Mo.  583;  to   a  letter  carrier  while  on  his 

Gilchrist  v.  Donnell,  53  Mo.  591.  rounds    is     a    sufficient     mailing 

1  Where    the    mail    service    be-  thereof:    Wynen  v.  Schappert,  6 

tween  two  points  is  suspended  or  Daly     (N.   Y.),    558;     Pearce    v. 

broken  up,  the  notice  of  protest  Langfit,  101  Pa.  507,  47  Am.  Eep. 

deposited  in  the  postoffice  at  one  737.     The  deposit,  however,  of  a 

point,  the   place   of  presentment,  notice  of  dishonor  of  negotiable 

and  addressed  to  an  indorser  who  paper  in  a  private  letter-box  of 

resides  at  the  other  point,  is  in-  a  private  office  is  not  a  deposit 

sufficient:    Donegan  v.  Wood,  49  in    the   postoffice,    and    notice    so 

Ala.  242,  20  Am.  Rep.  275.  mailed    would    not  be  sufficient: 

A  notice  properly  addressed,  on  Townsend  v.  Auld,  10  Misc.  Eep. 

•which  the  postage  is  paid,  handed  (N.  Y.)  313,  31  N.  Y.  Supp.  29. 


PEOTESTING   NEGOTIABLE   INSTRUMENTS.  249 

notice  must  be  sent  by  special  messenger;  if  any  other 
method  is  followed,  it  must  be  shown  that  the  notice  was 
received  as  promptly  as  it  would  have  been  by  messenger.^ 

§  165.  Form  of  Notice. — "The  notice  may  be  in  writing 
or  merely  oral,  and  may  be  given  in  any  terms  which  suf- 
ficiently identify  the  instrument,  and  indicate  that  it  has 
been  dishonored  by  nonacceptance  or  nonpayment  .  .  .  .": 
Neg.  Inst.  Law,  Eem.  &  Bal.  Code,  §  3486.  "A  written 
notice  need  not  be  signed,  and  an  insufficient  written  notice 
may  be  supplemented  and  validated  by  verbal  communica- 
tion .  .  .  .":  Neg.  Inst.  Law,  Eem.  &  Bal.  Code,  §3485. 
The  one  giving  the  notice  should  be  sure  that  the  following 
requisites  are  set  out  in  the  notice: 

1.  Place  and  date  of  sender. 

2.  Name  and  address  of  the  person  notice  is  mailed  to. 

3.  Words  ''Take  notice"  or  expression  to  the  same  effect. 

4.  Name  of  instrument  protested. 

5.  Amount  shown  on  instrument. 

6.  Place  and  date  of  instrument. 

7.  Name  of  maker  or  drawer. 

8.  Name  of  drawee. 

9.  Name  of  payee. 

10.  Time  of  payment  as  shown  by  instrument. 

11.  Relation  of  person  to  whom  notice  is  sent  to  the  in- 
strument, viz.,  "indorsed  by  you." 

12.  Statement  that  instrument  was  protested  and  reason 
therefor. 

13.  Statement  that  holder  hereby  notifies  receiver  of 
notice  that  he  looks  to  him  for  payment,  damages,  interest 
and  costs. 

2  Fish  V.  Jackman,  19  Me.  467,  law  requires,  as  to  leave  it  un- 

36  Am.  Dec.  769;  Columbia  Bank  certain  whether  any  notice   was 

V.  Lawrence,  1  Pet.  (U.  S.)  578,  given  to  the  indorser  at  any  time 

7  L.   ed.   270;    Citizens'  Bank  v.  or  place  or  put  into  the  postoffice 

Pugh,    19    La.    Ann.    43.     Where  for    him,     such    indorser   is   not 

the    usage    of    a    bank    in    rela-  bound  by   such   usage  by    doing 

tion   to   giving  notice   to    an   in-  business   with   the   bank:     Thorn 

dorser  is   so  loose   and   variable,  v.  Bice,  15  Me.  263. 
and  so   different  from  what   the 


250  LAW  FOR  NOTARIES  PUBLIC. 

14.  Signature  of  notary  followed  by  words  "Notary  Pub- 
lie  in  and  for  the  State  of  Washington,  Residing  at  Seattle." 

15.  Notary's  seal  is  not  necessary. 

The  following  is  one  form  setting  out  the  above: 

FORM  LXXI. 

Notice  of  Protest. 
^  Seattle,  Washington, 

December  10,  1910. 
To  John  Jonea, 

Renton,  Washington. 

Please  take  notice  that  a  promissory  note 

Dated,  Seattle,  Wash.,  Nov.  10,  1910. 

For,  $1,000. 

Made  by  William  Stiles  (maker). 

Upon (In  case  of  bill  of  exchange,  drawee's  name  should  be 

written  here.) 

In  favor  of  Frank  Smith  (payee). 

Payable  one  month  after  date. 

And  indorsed  by  you,  was  this  day  protested  for  nonpayment. 

You  are  hereby  notified  that  the  holders  look  to  you  for  payment, 
damages,  interest  and  costs. 

Yours,  etc. 

JOHN  DOE, 
Notary  Public  in  and  for  the  State  of  Washington  residing  at  Seattle. 

§  168.  Waiver  of  Notice. — "Notice  of  dishonor  may  be 
waived,  either  before  the  time  of  giving  notice  has  arrived, 
or  after  the  omission  to  give  due  notice,  and  the  waiver  may 
be  express  or  implied":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code, 
§3499.  "Where  the  waiver  is  embodied  in  the  instrument 
itself,  it  is  binding  upon  all  parties;  but  where  it  is  written 
above  the  signature  of  an  indorser  it  binds  only  him":  Neg. 
Inst.  Law,  Rem.  &  Bal.  Code,  §  3500.  **A  waiver  of  protest, 
whether  in  case  of  a  foreign  bill  of  exchange  or  other  nego- 
tiable instrument,  is  deemed  to  be  a  waiver  not  only  of  a 
formal  protest,  but  also  of  presentment  and  notice  of  dis- 
honor": Neg.  Inst.  Law,  Rem.  &  Bal.  Code,  §3501.  The 
waiver  is  often  in  the  form  of  a  slip  of  paper  pinned  to  the 
note,  bill  or  check  containing  the  words: 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  251 

FORM  LXXII. 

"No  Protest,"  or  "Presentment,  Demand  and  Notice 
Waived." 

EEFEREE  IN  CASE  OP  NEED. 

§  167.  Who  Names. — "The  drawer  of  a  bill  and  any 
indorser  may  insert  thereon  the  name  of  a  person  to  whom 
the  holder  may  resort  in  case  of  need,  that  is  to  say  in  case 
the  bill  is  dishonored  by  nonacceptance  or  nonpayment. 
Such  person  is  called  the  referee  in  case  of  need.  It  is  the 
option  of  the  holder  to  resort  to  the  referee  in  case  of  need 
or  not  as  he  may  see  fit":  Neg.  Inst.  Law,  Rem.  &  Bal.  Code, 
§  3521. 

EEC0BD3. 

§  168.  Notary's  Records. — When  a  notary  is  first  ap- 
pointed he  should  supply  himself  with  a  book  for  his  rec- 
ords and  take  great  care  to  make  his  records  full  and  clear. 
He  and  his  bondsmen  are  liable  for  any  loss  occasioned  by 
reason  of  his  incorrect  records.  The  statute  is  as  follows: 
"Every  notary  public  is  required  to  keep  a  true  record  of 
all  notices  of  protest  given  or  sent  by  him,  with  the  time 
and  manner  in  which  the  same  were  given  or  sent,  and  the 
names  of  all  the  parties  to  whom  the  same  were  given  or 
sent,  with  the  copy  of  the  instrument  in  relation  to  which 
the  notice  is  served,  and  of  the  notice  itself;  said  record,  or  a 
copy  thereof,  duly  certified  under  the  hand  and  seal  of  the 
notary  public,  or  county  clerk  having  the  custody  of  the 
original  record,  shall  be  competent  evidence  to  prove  the 
facts  therein  stated,  but  the  same  may  be  contradicted  by 
other  competent  evidence":  Laws  1890,  p.  474,  §  6;  1  H.  C, 
§  334;  Bal.  Code,  §  250;  Rem.  &  Bal.  Code,  §  8300. 

The  following  is  a  list  of  the  records  to  be  kept  of  a  pro- 
test, etc.;  it  will  be  seen  that  the  demands  of  the  statute 
are  complied  with:  (1)  Copy  of  the  instrument;  (2)  copy 
of  notice  of  dishonor  sent;  (3)  a  full  account  of  the  time 
and  manner  any  personal  notice  of  dishonor  was  given; 
(4)  a  list  of  the  names  and  addresses  of  all  parties  to  whom 
notice  of  dishonor  was  given  or  sent;  (5)  an  account  of  the 


252  LAW  FOR  NOTARIES  PUBLIC. 

time   and  manner  the  notices  of  dishonor  were  given  or 
sent. 

FORM  LXXIII. 

The  form  in  this  case  would  be  merely  making  note  of 
(1),  (2),  (3),  (4),  (5).  It  is  not  thought  necessary  to  take 
the  space. 

§  169.  Notary's  Records  as  Evidence. — ^The  notary's  rec- 
ords become  public  documents  as  being  those  kept  by  a 
public  officer,  and  the  "record  or  a  copy  thereof,  duly  cer- 
tified under  the  hand  and  seal  of  the  notary  public,  or 
county  clerk  having  the  custody  of  the  original  record,  shall 
be  competent  evidence  to  prove  the  facts  therein  stated,  but 
the  same  may  be  contradicted  by  other  competent  evi- 
dence" r^  Laws  1890,  p.  474,  §6;  1  H.  C,  §334;  Bal.  Code, 
§250;  Rem.  &  Bal.  Code,  §8300.  See  §  168.  [a]  In  au- 
thenticating, the  notary's  seal  may  be  impressed  directly  on 
the  paper,  [b] 

[a]  "Copies  of  all  records  and  documents  on  record  or  on  file  in 
the  offices  of  the  various  departments  of  the  United  States  and  of  this 
state,  when  duly  certified  hj  the  respective  officers  having  by  law 
the  custody  thereof,  under  their  respective  seals,  where  such  officers  have 
official  seals,  shall  be  admitted  in  evidence  in  the  courts  of  this  state": 
Laws  1891,  p.  37,  §16;  2  H.  C,  §1681;  Bal.  Code,  §6043;  Eem.  & 
Bal.  Code,  §  1257. 

[b]  "A  seal  of  court  or  public  office,  when  required  to  any  writ, 
process,  or  proceeding  to  authenticate  a  copy  of  any  record  or  docu- 
ment, may  be  affixed  by  making  an  impression  directly  on  the  paper, 
which  shall  be  as  valid  as  if  made  upon  a  wafer  or  on  wax":  Laws 
1854,  p.  196,  §338;  Code  1881,  §434;  2  H.  C,  §1683;  Bal.  Code, 
S  6044;  Eem.  &  Bal.  Code,  §  1258. 

§  170.  Liability  of  Notary  for  Failure  to  Act  in  Matters 
of  Protest. — For  all  acts  in  connection  with  bills  and  notes 
which  the  law  says  are  the  duty  of  the  notary  he  is  liable 

1  Thus  the  books   or  registers  Johns.    168,    11    Am.    Dec.    262; 

of    a    deceased    notary    are    ad-  Porter   v.   Judson,   1   Gray,    175; 

missible  to  prove  his  acts  as  to  Nicholls  v.  Webb,  8  Wheat.  326, 

the  presentment,  demand,  and  no-  5   L.    ed.   628;    Chase's   Stephen's 

tice  of  nonpayment  of  negotiable  Digest  of  the  Law  of  Evidence, 

paper:    Halliday  v.  Martinet,  20  2d  ed.,  p.  91. 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  253 

on  his  bond  to  the  holder  thereof  for  a  failure  to  perform 
in  a  proper  manner.*  It  is  one  of  the  notary's  duties  to  pro- 
test negotiable  paper  and  for  a  failure  to  do  so  properly  he 
and  his  sureties  are  liable  on  his  bond.^  If  it  is  by  custom  or 
usage  the  official  duty  of  a  notary  to  give  notice  of  protest  or 
dishonor  of  negotiable  instruments,  he  is  liable  for  a  failure 
to  give  such  notice  in  a  legal  manner.'  Where  there  is  a 
statute,  as  there  is  in  Washington, [a]  making  it  the  notary's 
duty  to  keep  a  record  of  the  protests  and  notices  made  and 
given  by  him,  both  he  and  his  sureties  are  liable  for  a  failure 
to  keep  such  record  where  loss  occurs.* 

For  all  acts  in  connection  with  bills  and  notes  not  legally 
his  duty,  but  which  he  performs  or  attempts  to  perform 
for  the  holder,  and  which  through  negligence  or  fraud  he 
fails  to  carry  out  in  a  proper  manner,  a  notary  is  liable  to 
the  holder  as  his  agent.°  The  measure  of  damages  against 
a  notary  for  certifying  falsely  as  to  giving  notices  of  dis- 
honor of  a  bill  or  note,  where  loss  is  caused  to  the  holder 
thereof,  is  the  actual  loss  sustained.* 

[a]  See  §  168. 

§  171.  Criminal  Liability. — The  criminal  liability  which 
a  notary  puts  himself  under  by  a  wrongful  use  of  his  office 
is  considered  on  page  96. 

NEGOTIABLE   INSTEUMENTS    LAW. 

§  172.  Of  Washington. — The  notary  in  this  state  is  gov- 
erned as  to  his  acts  of  demand  for  acceptance  or  payment 

1  29  Cyc.  Law  &  Proc,  p.  1105.  4  Hyde    v.    Planters'    Bank,    17 

2  Com.   Bank  v.  Varum,   49   N.      La.  560,  36  Am.  Dec.  621. 

Y.    269;    Williams    v.    Parks,    63  5  Parke  v.  Lowrie,   6  Watts  & 

Neb.  747,  89  N.  W.  395,  56  L.  E.  S.  (Pa.)   507;  Marston  v.  Mobile 

A.  759.  Bank,  10  Ala.  284;  Hyde  v.  Plant- 

3  Neal  V.  Taylor,  9  Bush  (Ky.),  ers'  Bank,  17  La.  560,  36  Am. 
380;  Tevis  v.  Eandall,  6  Cal.  632,  Dec.  621;  Stott  v.  Harrison,  73 
65  Am.  Dec.  547;  Bank  of  Mo-  Ind.  17;  Mobile  Bank  v.  Marston, 
bile  V.  Marston,  7  Ala.  108;  Bow-  10  Ala.  284. 

ling  V.  Arthur,  34  Miss.  41;  Will-  6  Mobile   Bank   v.   Marston,    10 

iams  V.  Parks,  63   Neb.   747,  89       Ala.  284. 
N.  W.  395,  56  L.  E.  A.  759. 


254  LAW  FOR  NOTARIES  PUBLIC. 

and  as  to  protests  by  the  Law  of  1899,  page  340,  known  as 
the  "Negotiable  Instruments  Law,"  together  with  a  few 
statutes  which  were  not  repealed  by  that  law.  The  laws  are 
referred  to  as  they  appear  in  the  new  Remington  and  Bal- 
linger  Code  for  the  sake  of  easy  reference.  In  Ballinger's 
Code  they  are  sections  3650-4664;  in  Hill's  Code,  sections 
2383-2397. 

§  3392.  Negotiahility,  What  Constitutes. — An  instrument 
to  be  negotiable  must  conform  to  the  following  require- 
ments: (1)  It  must  be  in  writing  and  signed  by  the  maker 
or  drawer;  (2)  must  contain  an  unconditional  promise  or 
order  to  pay  a  sum  certain  in  money;  (3)  must  be  payable 
on  demand,  or  at  a  fixed  or  determinable  future  time;  (4) 
must  be  payable  to  order  or  to  bearer;  and,  (5)  where  the 
instrument  is  addressed  to  a  drawee,  he  must  be  named  or 
otherwise   indicated  therein   with   reasonable   certainty. 

§  3393.  "Sum  Certain"  Defined. — The  sum  payable  is  a 
sum  certain  within  the  meaning  of  this  act,  although  it  is 
to  be  paid — (1)  with  interest;  or  (2)  by  stated  installments; 
or  (3)  by  stated  installments,  with  a  provision  that  upon 
default  in  payment  of  any  installment  or  of  interest,  the 
whole  shall  become  due;  or  (4)  with  exchange,  whether  at  a 
fixed  rate  or  at  the  current  rate;  or  (5)  with  costs  of  collec- 
tion or  an  attorney's  fees,  in  case  payment  shall  not  be  made 
at  maturity. 

§  3394.  "Unconditional"  Defined. — An  unqualified  order 
or  promise  to  pay  is  unconditional,  within  the  meaning  of 
this  act,  though  coupled  with  (1)  an  indication  of  a  particular 
fund  out  of  which  reimbursement  is  to  be  made,  or  a  par- 
ticular account  to  be  debited  with  the  amount;  or  (2)  a  state- 
ment of  the  transaction  which  gives  rise  to  the  instrument. 
But  an  order  or  promise  to  pay  out  of  a  particular  fund  is 
not  unconditional. 

§  3395.  "Determinable  Future  Time'*  Defined. — An  in- 
strument is  payable  at  a  determinable  future  time,  within  the 
meaning  of  this  act,  which  is  expressed  to  be  payable — (1) 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  255 

at  a  fixed  period  after  date  or  sight;  or  (2)  on  or  before  a 
fixed  or  determinable  future  time  specified  therein;  or  (3) 
on  or  at  a  fixed  period  after  the  occurrence  of  a  specified 
event,  which  is  certain  to  happen,  though  the  time  of  happen- 
ing be  uncertain.  An  instrument  payable  upon  a  contin- 
gency is  not  negotiable,  and  the  happening  of  the  event  does 
not  cure  the  defect. 

§  3396.  Negotiability — Effect  of  Provisions  on. — An  in- 
strument which  contains  an  order  or  promise  to  do  any  act  in 
addition  to  the  payment  of  money  is  not  negotiable.  But  the 
negotiable  character  of  an  instrument  otherwise  negotiable  is 
not  affected  by  a  provision  which — (1)  authorizes  the  sale 
of  collateral  securities  in  case  the  instrument  be  not  paid  at 
maturity;  or  (2)  authorizes  a  confession  of  judgment  if  the 
instrument  be  not  paid  at  maturity;  or  (3)  waives  the  benefit 
of  any  law  intended  for  the  advantage  or  protection  of  the 
obligor;  or  (4)  gives  the  holder  an  election  to  require  some- 
thing to  be  done  in  lieu  of  payment  of  money.  But  nothing 
in  this  section  shall  validate  any  provision  or  stipulation 
otherwise  illegal. 

§  3397.  Validity  and  Negotiahility — When  not  Affected. 
The  validity  and  negotiable  character  of  an  instrument  are 
not  affected  by  the  fact  that — (1)  it  is  not  dated;  or  (2)  does 
not  specify  the  value  given,  or  that  any  value  has  been  given 
therefor;  or  (3)  does  not  specify  the  place  where  it  is  drawn 
or  the  place  where  it  is  payable;  or  (4)  bears  a  seal;  or  (5) 
designates  a  particular  kind  of  current  money  in  which  pay- 
ment is  to  be  made.  But  nothing  in  this  section  shall  alter 
or  repeal  any  statute  requiring  in  certain  cases,  the  nature  of 
the  consideration  to  be  stated  in  the  instrument. 

§  3398.  When  "Payable  on  Demand." — An  instrument, 
is  payable  on  demand — (1)  where  it  is  expressed  to  be  pay- 
able on  demand,  or  at  sight,  or  on  presentation;  or  (2)  in 
which  no  time  for  payment  is  expressed.  Where  an  instru- 
ment is  issued,  accepted  or  indorsed  when  overdue,  it  is,  as 
regards  the  person  so  issuing,  accepting  or  indorsing  it,  pay- 
able on  demand. 


256  LAW   FOR  NOTARIES  PUBLIC. 

§  3399.  When  ''Payable  to  Order."— The  instrument  is 
payable  to  order  where  it  is  drawn  payable  to  the  order  of 
a  specified  person  or  to  him  or  his  order.  It  may  be  drawn 
payable  to  the  order  of — (1)  a  payee  who  is  not  maker,  draw^er, 
or  drawee;  or  (2)  the  drawer  or  maker;  or  (3)  the  drawee; 
or  (4)  two  or  more  payees  jointly;  or  (5)  one  or  some  of 
several  payees;  or  (6)  the  holder  of  an  office  for  the  time 
being.  Where  the  instrument  is  payable  to  order  the  payee 
must  be  named  or  otherwise  indicated  therein  with  reason- 
able certainty. 

§  3400.  When  ''Payable  to  Bearer."— The  instrument  is 
payable  to  bearer — (1)  when  it  is  expressed  to  be  so  payable; 
or  (2)  when  it  is  payable  to  a  person  named  therein  or  bearer; 
or  (3)  when  it  is  payable  to  the  order  of  a  fictitious  or  non- 
existing  person,  and  such  fact  was  known  to  the  person  mak- 
ing it  so  payable;  or  (4)  when  the  name  of  the  payee  does 
not  purport  to  be  the  name  of  any  person;  or  (5)  when  the 
only  or  last  iridorsement  is  an  indorsement  in  blank. 

§  3401.  Intent  to  Conform  to  Bequirements  Sufficient. — 
The  instrument  need  not  follow  the  language  of  this  act,  but 
any  terms  are  sufficient  which  clearly  indicate  an  intention  to 
conform  to  the  requirements  hereof. 

§  3402.  Date  Prima  Facie  True. — Where  the  instrument  or 
an  acceptance  or  any  indorsement  thereon  is  dated,  such  date 
is  deemed  prima  facie  to  be  the  true  date  of  the  making, 
drawing,  acceptance  or  indorsement,  as  the  case  may  be. 

§  3403.  Effect  of  Ante  or  Post  Date.— The  instrument  is 
not  invalid  for  the  reason  only  that  it  is  antedated  or  post- 
dated, provided  this  is  not  done  for  an  illegal  or  fraudulent 
purpose.  The  person  to  whom  an  instrument  so  dated  is  de- 
livered acquires  the  title  thereto  as  of  the  date  of  delivery. 

§  3404.  Blank  Date — Holder  may  Fill. — Where  an  instru- 
ment expressed  to  be  payable  at  a  fixed  period  after  date  is 
issued  undated,  or  where  the  acceptance  of  an  instrument 
payable  at  a  fixed  period  after  sight  is  undated,  any  holder 
may  insert  therein  the  true  date  of  issue  or  acceptance,  and 
the  instrument  shall  be  payable  accordingly.    The  insertion 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  257 

of  a  wrong  date  does  not  avoid  the  instrument  in  the  hands 
of  a  subsequent  holder  in  due  course;  but  as  to  him,  the  date 
so  inserted  is  to  be  regarded  as  the  true  date. 

§  3405.  Defects  and  Blanks — Holder's  Right  to  Fill. — 
Where  the  instrument  is  wanting  in  any  material  particular, 
the  person  in  possession  thereof  has  a  prima  facie  authority 
to  complete  it  by  filling  up  the  blanks  therein.  And  a  signa- 
ture on  a  blank  paper  delivered  by  the  person  making  the 
signature,  in  order  that  the  paper  may  be  converted  into  a 
negotiable  instrument  operates  as  a  prima  facie  authority  to 
fill  it  up  as  such  for  any  amount.  In  order,  however,  that 
any  such  instrument  when  completed  may  be  enforced  against 
any  person  who  became  a  party  thereto  prior  to  its  comple- 
tion, it  must  be  filled  up  strictly  in  accordance  with  the  au- 
thority given  and  within  a  reasonable  time.  But  if  any  such 
instrument,  after  completion,  is  negotiated  to  a  holder  in  due 
course,  it  is  valid  and  effectual  for  all  purposes  in  his  hands, 
and  he  may  enforce  it  as  if  it  had  been  filled  up  strictly  in 
accordance  with  the  authority  given  and  within  a  reasonable 
time. 

§  3406.  Negotiation  Without  Delivery  or  Authority  In- 
valid.— Where  an  incomplete  instrument  has  not  been  deliv- 
ered, it  will  not,  if  completed  and  negotiated,  without  au- 
thority, be  a  valid  contract  in  the  hands  of  any  holder,  as 
against  any  person  whose  signature  was  placed  thereon  be- 
fore delivery. 

§  3407.  Delivery,  What  Constitutes. — Every  contract  on 
a  negotiable  instrument  is  incomplete  and  revocable  until 
delivery  of  the  instrument  for  the  purpose  of  giving  effect 
thereto.  As  between  immediate  parties,  and  as  regards  a 
remote  party  other  than  a  holder  in  due  course,  the  delivery, 
in  order  to  be  effectual,  must  be  made  either  by  or  under 
the  authority  of  the  party  making,  drawing,  accepting  or  in- 
dorsing, as  the  case  may  be;  and  in  such  case  the  delivery 
may  be  shown  to  have  been  conditional,  or  for  a  special  pur- 
pose only,  and  not  for  the  purpose  of  transferring  the  prop- 
erty in  the  instrument.  But  where  the  instrument  is  in  the 
17 


259  LAW  FOR  NOTARIES  PUBLIC. 

hands  of  a  holder  in  due  course,  a  valid  delivery  thereof  by 
all  parties  prior  to  him  so  as  to  make  them  liable  to  him  is  con- 
clusively presumed.  And  where  the  instrument  is  no  longer 
in  the  possession  of  a  party  whose  signature  appears  thereon, 
a  valid  and  intentional  delivery  by  him  is  presumed  until  the 
contrary  is  proved. 

§  3408.  Construction  of  Anibiguities. — Where  the  lan- 
guage of  the  instrument  is  ambiguous,  or  there  are  omissions 
therein,  the  following  rules  of  construction  apply:  (1)  Where 
the  sum  payable  is  expressed  in  words  and  also  in  figures 
and  there  is  a  discrepancy  between  the  two,  the  sum  denoted 
by  the  words  is  the  sum  payable;  but  if  the  words  are  am- 
biguous or  uncertain,  references  may  be  had  to  the  figures  to 
fix  the  amount.  (2)  Where  the  instrument  provides  for  the 
payment  of  interest,  without  specifying  the  date  from  which 
interest  is  to  run,  the  interest  runs  from  the  date  of  the  instru- 
ment, and  if  the  instrument  is  undated,  from  the  issue  thereof. 
(3)  Where  the  instrument  is  not  dated,  it  will  be  considered 
to  be  dated  as  of  the  time  it  was  issued.  (4)  Where  there 
is  conflict  between  the  written  and  printed  provisions  of  the 
instrument,  the  written  provisions  prevail.  (5)  Where  the 
instrument  is  so  ambiguous  that  there  is  doubt  whether  it  is 
a  bill  or  note,  the  holder  may  treat  it  as  either  at  his  election. 
(6)  Where  a  signature  is  so  placed  upon  the  instrument  that 
it  is  not  clear  in  what  capacity  the  person  making  the  same 
intended  to  sign,  he  is  to  be  deemed  an  indorser.  (7)  Where 
an  instrument  containing  the  words,  "I  promise  to  pay,"  is 
signed  by  two  or  more  persons,  they  are  deemed  to  be  jointly 
and  severally  liable  thereon. 

§  3409.  Liability  —  Signature  Necessary  —  Assumed  or 
Trade  Name. — No  person  is  liable  on  the  instrument  whose 
signature  does  not  appear  thereon,  except  as  herein  otherwise 
expressly  provided.  But  one  who  signs  in  a  trade  or  assumed 
name  will  be  liable  to  the  same  extent  as  if  he  had  signed 
in  his  own  name. 

§  3410.  Signature  hy  Agent. — The  signature  of  any  party 
may  be  made  by  a  duly  authorized  agent.  No  particular 
form  of  appointment  is  necessary  for  this  purpose;  and  the 


PROTESTING  NEGOTLiBLE  INSTRUMENTS.  259 

authority  of  the  agent  may  be  established  as  in  other  cases 
of  agency. 

§  3411.  Liability  of  Agent. — Where  the  instrument  con- 
tains, or  a  person  adds  to  his  signature,  words  indicating  that 
lie  signs  for  or  on  behalf  of  a  principal,  or  in  a  representative 
capacity,  he  is  not  liable  on  the  instrument  if  he  was  duly 
authorized ;  but  the  mere  addition  of  words  describing  him  as 
agent,  or  as  filling  a  representative  character,  without  dis- 
closing his  principal,  does  not  exempt  him  from  personal 
liability. 

§  3412.  Signature  hy  ''Procuration" — Notice. — "X  signa- 
ture by  "procuration"  operates  as  notice  that  the  agent  has 
but  a  limited  authority  to  sign,  and  the  principal  is  bound 
only  in  case  the  agent  in  so  signing  acted  within  the  actual 
limits  of  his  authority. 

§  3413.  Assignment  hy  Corporation  or  Infant  Passes 
Title. — The  indorsement  or  assignment  of  the  instrument  by  a 
corporation  or  by  an  infant  passes  the  property  therein,  not- 
withstanding that  from  want  of  capacity  the  corporation  or 
infant  may  incur  no  liability  thereon. 

§  3414.  Forgery,  Effect  of. — Where  a  signature  is  forged 
or  made  without  authority  of  the  person  whose  signature  it 
purports  to  be,  it  is  wholly  inoperative,  and  no  right  to  retain 
the  instrument,  or  to  give  a  discharge  therefor,  or  to  enforce 
payment  thereof  against  any  party  thereto,  can  be  acquired 
through  or  under  such  signature,  unless  the  party,  against 
whom  it  is  sought  to  enforce  such  right,  is  precluded  from 
setting  up  the  forgery  or  want  of  authority. 

§  3415.  Consideration  Presumed. — Every  negotiable  in- 
strument is  deemed  prima  facie  to  have  been  issued  for  a  val- 
uable consideration;  and  every  person  whose  signature  ap- 
pears thereon  to  have  become  a  party  thereto  for  value. 

§  3416.  Value,  What  Constitutes. — Value  is  any  consid- 
eration sufficient  to  support  a  simple  contract.  An  antece- 
dent or  pre-existing  debt  constitutes  value;  and  is  deemed 
such  whether  the  instrument  is  payable  on  demand  or  at  a 
future  time. 


260  LAW  FOB  NOTARIES  PUBLIC. 

§  3417.  ^'Holder  for  Value'*  When.— Where  value  has 
at  any  time  been  given  for  the  instrument,  the  holder  is 
deemed  a  holder  for  value  in  respect  to  all  parties  who  became 
such  prior  to  that  time. 

§  3418.  Same — Lien. — Where  the  holder  has  a  lien  on  the 
instrument,  arising  either  from  contract  or  by  implication  of 
law,  he  is  deemed  a  holder  for  value  to  the  extent  of  his  lien. 

§  3419.  Lack  of  Consideration  as  a  Defence. — ^Absence  or 
failure  of  consideration  is  matter  of  defense  as  against  any 
person  not  a  holder  in  due  course ;  and  partial  failure  of  con- 
sideration is  a  defense  pro  tanto,  whether  the  failure  is  an  as- 
certained and  liquidated  amount  or  otherwise. 

§  3420.  Accommodation  Party,  Who  is. — An  accommoda- 
tion party  is  one  who  has  signed  the  instrument  as  maker, 
drawer,  acceptor  or  indorser,  without  receiving  value  there- 
for, and  for  the  purpose  of  lending  his  name  to  some  other 
person.  Such  a  person  is  liable  on  the  instrument  to  a  holder 
for  value,  notwithstanding  such  holder  at  the  time  of  taking 
the  instrument  knew  him  to  be  only  an  accommodation  party. 

§  3421.  How  Negotiated. — ^An  instrument  is  negotiated 
when  it  is  transferred  from  one  person  to  another  in  such 
manner  as  to  constitute  the  transferee  the  holder  thereof. 
If  payable  to  bearer  it  is  negotiated  by  delivery;  if  payable 
to  order  it  is  negotiated  by  the  indorsement  of  the  holder 
completed  by  delivery. 

§  3422.  How  Indorsed. — The  indorsement  must  be  written 
on  the  instrument  itself  or  upon  a  paper  attached  thereto. 
The  signature  of  the  indorser,  without  additional  words,  is 
a  sufficient  indorsement. 

§  3423.  Indorsement  must  he  Entire. — The  indorsement 
must  be  an  indorsement  of  the  entire  instrument.  An  in- 
dorsement, which  purports  to  transfer  to  the  indorsee  a  part 
only  of  the  amount  payable,  or  which  purports  to  transfer 
the  instrument  to  two  or  more  indorsees  severally,  does  not 
operate  as  a  negotiation  of  the  instrument.  But  where  the 
instrument  has  been  paid  in  part,  it  may  be  indorsed  as  to  the 
residue. 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  261 

§  3424.  Same — May  ie  Special,  etc. — An  indorsement 
may  be  either  special  or  in  blank;  and  it  may  also  be  either 
restrictive  or  qualified,  or  conditional. 

§  3425.  Special  and  Blank  Indorsements,  What  are. — A 
special  indorsement  specifies  the  person  to  whom,  or  to  whose 
order,  the  instrument  is  to  be  payable ;  and  the  indorsement 
of  such  indorsee  is  necessary  to  the  further  negotiation  of  the 
instrument.  An  indorsement  in  blank  specifies  no  indorsee, 
and  an  instrument  so  indorsed  is  payable  to  bearer,  and  may 
be  negotiated  by  delivery. 

§  3426.  Blank  Indorsement  may  he  Changed  to  Special. — 
The  holder  may  convert  a  blank  indorsement  into  a  special 
indorsement  by  writing  over  the  signature  of  the  indorser  in 
blank  any  contract  consistent  with  the  character  of  the  in- 
dorsement. 

§  3427.  Restrictive  Indorsements. — An  indorsement  is  re- 
strictive, which  either — (1)  prohibits  the  further  negotia- 
tion of  the  instrument;  or  (2)  constitutes  the  indorsee  the 
agent  of  the  indorser;  or  (3)  vests  the  title  in  the  indorsee 
in  trust  for  or  to  the  use  of  some  other  person.  But  the  mere 
absence  of  words  implying  power  to  negotiate  does  not  make 
an  indorsement  restrictive. 

§  3428.  Eights  of  Restrictive  Indorsee. — A  restrictive  in- 
dorsement confers  upon  the  indorsee  the  right — (1)  to  receive 
payment  of  the  instrument;  (2)  to  bring  any  action  thereon 
that  the  indorser  could  bring;  (3)  to  transfer  his  rights  as 
such  indorsee,  where  the  form  of  the  indorsement  authorizes 
him  to  do  so.  But  all  subsequent  indorsees  acquire  only  the 
title  of  the  first  indorsee  under  the  restrictive  indorsement. 

§  3429.  Qualified  Indorsement. — A  qualified  indorsement 
constitutes  the  indorser  a  mere  assignor  of  the  title  to  the 
instrument.  It  may  be  made  by  adding  to  the  indorser 's 
signature  the  words  "without  recourse"  or  any  words  of 
similar  import.  Such  an  indorsement  does  not  impair  the 
negotiable  character  of  the  instrument. 

§  3430.  Conditional  Indorsement,  Effect  of. — ^Where  an 
indorsement  is  conditional,  a  party  required  to  pay  the  in- 


262  LAW  FOR  NOTARIES  PUBLIC. 

strument  may  disregard  the  condition,  and  make  payment 
to  the  indorsee  or  his  transferee,  whether  the  condition  has 
been  fulfilled  or  not.  But  any  person  to  whom  an  instrument 
so  indorsed  is  negotiated,  will  hold  the  same,  or  the  proceeds 
thereof,  subject  to  the  rights  of  the  person  indorsing  condi- 
tionally. 

§  3431.  Special  Indorsement  Payable  to  Bearer,  Effect  of. 
Where  an  instrument,  payable  to  bearer,  is  indorsed  specially, 
it  may  nevertheless  be  further  negotiated  by  delivery;  but 
the  person  indorsing  specially  is  liable  as  indorser  to  only  such 
holders  as  make  title  through  his  indorsement. 

§  3432.  Payable  to  Two  or  More — Indorsement. — Where 
an  instrument  is  payable  to  the  order  of  two  or  more  payees 
or  indorsees  who  are  not  partners,  all  must  indorse,  unless 
the  one  indorsing  has  authority  to  indorse  for  the  others. 

§  3433.  Indorsement  to  "Cashier,"  Effect  of. — ^Where  an 
instrument  is  drawn  or  indorsed  to  a  person  as  "cashier"  or 
other  fiscal  officer  of  a  bank  or  corporation,  it  is  deemed  prima 
facie  to  be  payable  to  the  bank  or  corporation  of  which  he  is 
such  officer ;  and  may  be  negotiated  by  either  the  indorsement 
of  the  bank  or  corporation,  or  the  indorsement  of  the  officer. 

§  3434.  Misspelled  Name,  How  Indorsed. — Where  the 
name  of  a  payee  or  indorsee  is  wrongly  designated  or  mis- 
spelled, he  may  indorse  the  instrument  as  therein  described, 
adding,  if  he  think  fit,  his  proper  signature. 

§  3435.  Indorsement  in  Representative  Capacity. — ^Where 
any  person  is  under  obligation  to  indorse  in  a  representative 
capacity,  he  may  indorse  in  such  terms  as  to  negative  personal 
liability. 

§  3436.  Presumption  of  Negotiation  Before  Indorsement. 
Except  where  an  indorsement  bears  date  after  the  maturity 
of  the  instrument,  every  negotiation  is  deemed  prima  facie 
to  have  been  effected  before  the  instrument  was  overdue. 

§  3437.  Indorsement  Presumed  Made  When  Dated. — Ex- 
cept where  the  contrary  appears,  every  indorsement  is  pre- 


PROTESTING   NEGOTIABLE   INSTRUMENTS,  263 

sumed  prima  facie  to  have  been  made  at  the  place  where  the 
instrument  is  dated. 

§  3438.  Negotiahility  Continues. — ^An  instrument  nego- 
tiable in  its  origin  continues  to  be  negotiable  until  it  has  been 
restrietively  indorsed  or  discharged  by  payment  or  other- 
wise. 

§  3439.  Striking  Indorsement. — The  holder  may  at  any 
time  strike  out  any  indorsement  which  is  not  necessary  to  his 
title.  The  indorser  whose  indorsement  is  struck  out,  and  all 
indorsers  subsequent  to  him,  are  thereby  relieved  from  lia- 
bility on  the  instrument. 

§  3440.  Transfer  Without  Indorsement. — Where  the 
holder  of  an  instrument  payable  to  his  order  transfers  it  for 
value  without  indorsing  it,  the  transfer  vests  in  the  transferee 
such  title  as  the  transferrer  had  therein,  and  the  transferee 
acquires,  in  addition,  the  right  to  have  the  indorsement  of 
the  transferrer.  But  for  the  purpose  of  determining  whether 
the  transferee  is  a  holder  in  due  course,  the  negotiation  takes 
effect  as  of  the  time  when  the  indorsement  is  actually  made. 

§  3441.  Transfer  Back  to  Prior  Party. — Where  an  instru- 
ment is  negotiated  back  to  a  prior  party,  such  party  may, 
subject  to  the  provisions  of  this  act,  reissue  and  further  nego- 
tiate the  same.  But  he  is  not  entitled  to  enforce  payment 
thereof  against  any  intervening  party  to  whom  he  was  per- 
sonally liable. 

§  3442.  Holder  may  Sue  in  Own  Name. — The  holder  of 
a  negotiable  instrument  may  sue  thereon  in  his  own  name; 
and  payment  to  him  in  due  course  discharges  the  instrument. 

§  3443.  "Holder  in  Due  Course,"  When. — A  holder  in 
due  course  is  a  holder  who  has  taken  the  instrument  under 
the  following  conditions: — (1)  That  it  is  complete  and  regu- 
lar upon  its  face;  (2)  that  he  became  the  holder  of  it  before 
it  was  overdue,  and  without  notice  that  it  had  been  pre- 
viously dishonored,  if  such  was  the  fact;  (3)  that  he  took 
it  in  good  faith  and  for  value;  (4)  that  at  the  time  it  was 


264  LAW  FOR  NOTARIES  PUBLIC. 

negotiated  to  him  he  had  no  notice  of  any  infirmity  in  the 
instrument  or  defect  in  the  title  of  the  person  negotiating  it. 

§  3444.  Same,  When  not. — Where  an  instrument  payable 
on  demand  is  negotiated  an  unreasonable  length  of  time  after 
its  issue,  the  holder  is  not  deemed  a  holder  in  due  course. 

§  3445.  Notice  of  Defect  Before  Full  Payment. — Where 
the  transferee  receives  notice  of  any  infirmity  in  the  instru- 
ment or  defect  in  the  title  of  the  person  negotiating  the  same 
before  he  has  paid  the  full  amount  agreed  to  be  paid  therefor, 
he  will  be  deemed  a  holder  in  due  course  only  to  the  extent 
of  the  amount  theretofore  paid  by  him. 

§  3446.  Title  Defective,  When. — The  title  of  a  person  who 
negotiates  an  instrument  is  defective  within  the  meaning  of 
this  act  when  he  obtained  the  instrument,  or  any  signature 
thereto,  by  fraud,  duress,  or  force  and  fear,  or  other  unlawful 
means,  or  for  an  illegal  consideration,  or  when  he  negotiates 
it  in  breach  of  faith,  or  under  such  circumstances  as  amount 
to  a  fraud. 

§  3447.  Notice  of  Defect,  What  is. — To  constitute  notice 
of  an  infirmity  in  the  instrument  or  defect  in  the  title  of  the 
person  negotiating  the  same,  the  person  to  whom  it  is  nego- 
tiated must  have  had  actual  knowledge  of  the  infirmity  or 
defect,  or  knowledge  of  such  facts  that  his  action  in  taking 
the  instrument  amounted  to  bad  faith. 

§  3448.  "Holder  in  Due  Course"— Right  to  Full  Pay- 
ment.— A  holder  in  due  course  holds  the  instrument  free 
from  any  defect  of  title  of  prior  parties,  and  free  from  de- 
fenses available  to  prior  parties  among  themselves,  and  may 
enforce  payment  of  the  instrument  for  the  full  amount 
thereof  against  all  parties  liable  thereon. 

§  3449.  Defenses  Against  One  n^t  a  Holder  in  Due 
Course. — In  the  hands  of  any  holder  other  than  a  holder  in 
due  course,  a  negotiable  instrument  is  subject  to  the  same 
defenses  as  if  it  were  non-negotiable.  But  a  holder  who  de- 
rives his  title  through  a  holder  in  due  course,  and  who  is  not 
himself  a  party  to  any  fraud  or  illegality  affecting  the  instru- 


PROTESTING   NEGOTIABLE   INSTRUMENTS.  265 

ment,  has  all  the  rights  of  such  former  holder  in  respect  of 
all  parties  prior  to  the  latter. 

§  3450.  ''Due  Course"  Presumed — Burden  of  Proof. — 
Every  holder  is  deemed  prima  facie  to  be  a  holder  in  due 
course ;  but  when  it  is  shown  that  the  title  of  any  person  who 
has  negotiated  the  instrument  was  defective,  the  burden  is 
on  the  holder  to  prove  that  he  or  some  person  under  whom 
he  claims  acquired  the  title  as  a  holder  in  due  course.  But 
the  last  mentioned  rule  does  not  apply  in  favor  of  a  party 
who  became  bound  on  the  instrument  prior  to  the  acquisition 
of  such  defective  title. 

§  3451.  Maker's  Undertaking — Estoppel. — The  maker  of 
a  negotiable  instrument  by  making  it  engages  that  he  will  pay 
it  according  to  its  tenor,  and  admits  the  existence  of  the 
payee  and  his  then  capacity  to  indorse. 

§  3452.  Drawer's  Undertaking — Estoppel. — The  drawer 
by  drawing  the  instrument  admits  the  existence  of  the  payee 
and  his  then  capacity  to  indorse;  and  engages  that  on  due 
presentment  the  instrument  will  be  accepted  or  paid,  or  both, 
according  to  its  tenor,  and  that  if  it  be  dishonored,  and  the 
necessary  proceedings  on  dishonor  be  duly  taken,  he  will  pay 
the  amount  thereof  to  the  holder,  or  to  any  subsequent  in- 
dorser  who  may  be  compelled  to  pay  it.  But  the  drawer  may 
insert  in  the  instrument  an  express  stipulation  negativing  or 
limiting  his  own  liability  to  the  holder. 

§  3453.  Acceptor's  Undertaking — Estoppel. — The  ac- 
ceptor by  accepting  the  instrument  engages  that  he  will  pay  it 
according  to  the  tenor  of  his  acceptance;  and  admits  (1) 
the  existence  of  the  drawer,  the  genuineness  of  his  signature, 
and  his  capacity  and  authority  to  draw  the  instrument;  and 
(2)  the  existence  of  the  payee  and  his  then  capacity  to  in- 
dorse. 

§  3454.  Signer,  an  Indorser,  Unless  Intention  Clearly  7n- 
dicated. — A  person  placing  his  signature  upon  an  instrument 
otherwise  than  as  maker,  drawer  or  acceptor  is  deemed  to  be 
an  indorser,  unless  he  clearly  indicates  by  appropriate  words 
his  intention  to  be  bound  in  some  other  capacity. 


266  LAW  FOB  NOTAKIES  PUBLIC. 

§  3455.  Blank  Signature  by  One  not  a  Party — Liahility. — 
Where  a  person,  not  otherwise  a  party  to  an  instrument, 
places  thereon  his  signature  in  blank  before  delivery,  he  is 
liable  as  indorser  in  accordance  with  the  following  rules: 

(1)  If  the  instrument  is  payable  to  the  order  of  a  third  per- 
son, he  is  liable  to  the  payee  and  to  all  subsequent  parties. 

(2)  If  the  instrument  is  payable  to  the  order  of  the  maker 
or  drawer,  or  is  payable  to  bearer,  he  is  liable  to  all  parties 
subsequent  to  the  maker  or  drawer.  (3)  If  he  signs  for  the 
accommodation  of  the  payee,  he  is  liable  to  all  parties  subse- 
quent to  the  payee. 

§  3456.  Warranties  hy  Negotiator. — Every  person  nego- 
tiating an  instrument  by  delivery  or  by  a  qualified  indorse- 
ment, warrants  (1)  that  the  instrument  is  genuine  and  in  all 
respects  what  it  purports  to  be;  (2)  that  he  has  a  good  title 
to  it;  (3)  that  all  prior  parties  had  capacity  to  contract; 
(4)  that  he  has  no  knowledge  of  any  fact  which  would  impair 
the  validity  of  the  instrument  or  render  it  valueless.  But 
when  the  negotiation  is  by  delivery  only,  the  warranty  ex- 
tends in  favor  of  no  holder  other  than  the  immediate  trans- 
feree. The  provisions  of  subdivision  three  of  this  section  do 
not  apply  to  persons  negotiating  public  or  corporate  securi- 
ties, other  than  bills  and  notes. 

§  3457.  Warranties  hy  Indorser. — Every  indorser  who  in- 
dorses without  qualification,  warrants  to  all  subsequent 
holders  in  due  course — (1)  the  matters  and  things  mentioned 
in  subdivisions  one,  two,  and  three  of  the  next  preceding  sec- 
tion; and  (2)  that  the  instrument  is  at  the  time  of  his  in- 
dorsement valid  and  subsisting.  And,  in  addition,  he  en- 
gages that  on  due  presentment,  it  shall  be  accepted  or  paid, 
or  both,  as  the  case  may  be,  according  to  its  tenor,  and  that 
if  it  be  dishonored  and  the  necessary  proceedings  on  dishonor 
be  duly  taken,  he  will  pay  the  amount  thereof  to  the  holder, 
or  to  any  subsequent  indorser  who  may  be  compelled  to  pay 
it. 

§  3458.  Liahility  of  Indorser — When  Negotiable  hy  De- 
livery.— Where  a  person  places  his  indorsement  on  an  instru- 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  267 

ment  negotiable  by  delivery  he  incurs  all  the  liabilities  of  an 
indorser. 

§  3459.  Order  of  Liability — Agreements  Admissible — 
Joint  Payees,  etc. — As  respects  one  another,  indorsers  are 
liable  prima  facie  in  the  order  in  which  they  indorse;  but 
evidence  is  admissible  to  show  that  as  between  or  among 
themselves  they  have  agreed  otherwise.  Joint  payees  or  joint 
indorsees  who  indorse  are  deemed  to  indorse  jointly  and 
severally. 

§  3460.  Liability  of  Broker  Negotiating  Without  Indorse- 
ment.— Where  a  broker  or  other  agent  negotiates  an  instru- 
ment without  indorsement,  he  incurs  all  the  liabilities  pre- 
scribed by  section  3456,  unless  he  discloses  the  name  of  his 
principal,  and  the  fact  that  he  is  acting  only  as  agent. 

§  3461.  Presentment — When  Necessary. — Presentment  for 
payment  is  not  necessary  in  order  to  charge  the  person 
primarily  liable  on  the  instrument;  but  if  the  instrument  is, 
by  its  terms,  payable  at  a  special  place,  and  he  is  able  and 
willing  to  pay  it  there  at  maturity,  such  ability  and  willing- 
ness are  equivalent  to  a  tender  of  payment  upon  his  part. 
But  except  as  herein  otherwise  provided,  presentment  for  pay- 
ment is  necessary  in  order  to  charge  the  drawer  and  indorsers. 

§  3462.  Time  of  Presentment. — Where  the  instrument  is 
not  payable  on  demand,  presentment  must  be  made  on  the  day 
it  falls  due.  Where  it  is  payable  on  demand,  presentment 
must  be  made  within  a  reasonable  time  after  its  issue,  except 
that  in  the  case  of  a  bill  of  exchange,  presentment  for  pay- 
ment will  be  sufficient  if  made  within  a  reasonable  time  after 
the  last  negotiation  thereof. 

§  3463.  Presentment,  Sufficiency  of. — ^Presentment  for 
payment,  to  be  sufiS.cient,  must  be  made — (1)  by  the  holder, 
or  by  some  person  authorized  to  receive  payment  on  his  be- 
half; (2)  at  a  reasonable  hour  on  a  business  day;  (3)  at  a 
proper  place  as  herein  defined;  (4)  to  the  person  primarily 
liable  on  the  instrument,  or,  if  he  is  absent  or  inaccessible, 
to  any  person  found  at  the  place  where  the  presentment  is 
made. 


268  LAW  FOB  NOTARIES  PUBLIC. 

§  3464.  Same,  Place  of. — ^Presentment  for  payment  is 
made  at  the  proper  place — (1)  "Where  a  place  of  payment  is 
specified  in  the  instrument  and  it  is  there  presented;  (2) 
where  no  place  of  payment  is  specified,  but  the  address  of 
the  person  to  make  payment  is  given  in  the  instrument  and 
it  is  there  presented;  (3)  where  no  place  of  payment  is 
specified  and  no  address  is  given  and  the  instrument  is  pre- 
sented at  the  usual  place  of  business  or  residence  of  the  per- 
son to  make  payment;  (4)  in  any  other  case,  if  presented  to 
the  person  to  make  payment  wherever  he  can  be  found,  or  if 
presented  at  his  last  known  place  of  business  or  residence. 

§  3465.  Exhibition  of  Instrument  Necessary. — The  instru- 
ment must  be  exhibited  to  the  person  from  whom  payment 
is  demanded,  and  when  it  is  paid  must  be  delivered  up  to  the 
party  paying  it. 

§  3466.  Presentment  at  Bank,  Time  of. — "Where  the  in- 
strument is  payable  at  a  bank,  presentment  for  payment  must 
be  made  during  banking  hours,  unless  the  person  to  make 
payment  has  no  funds  there  to  meet  it  at  any  time  during  the 
day,  in  which  case  presentment  at  any  hour  before  the  bank 
is  closed  on  that  day  is  sufficient. 

§  3467.  Same — To  Personal  Representative. — ^Where  the 
person  primarily  liable  on  the  instrument  is  dead,  and  no 
place  of  payment  is  specified,  presentment  for  payment  must 
be  made  to  his  personal  representative  if  such  there  be,  and 
if,  with  the  exercise  of  reasonable  diligence,  he  can  be  found. 

§  3468.  Same — To  One  of  Partners. — "Where  the  persons 
primarily  liable  on  the  instrument  are  liable  as  partners,  and 
no  place  of  payment  is  specified,  presentment  for  payment 
may  be  made  to  any  one  of  them,  even  though  there  has  been 
a  dissolution  of  the  firm. 

§  3469.  Presentment  to  All  Parties,  When  Necessary. — 
"Where  there  are  several  persons,  not  partners,  primarily 
liable  on  the  instrument,  and  no  place  of  payment  is  specified, 
presentment  must  be  made  to  them  all. 

§  3470.  Presentment  Unnecessary  to  Charge  Drawer 
WJien. — Presentment  for  payment  is  not  required  in  order 


PROTESTING   NEGOTIABLE   INSTRUMENTS.  269 

to  charge  the  drawer  where  he  has  no  right  to  expect  or  re- 
quire that  the  drawee  or  acceptor  will  pay  the  instrument. 

§  3471.  Presentment  Unnecessary  to  Charge  Indorser, 
When. — Presentment  for  payment  is  not  required  in  order  to 
charge  an  indorser  where  the  instrument  was  made  or  ac- 
cepted for  his  accommodation,  and  he  has  no  reason  to  expect 
that  the  instrument  will  be  paid  if  presented. 

§  3472.  Excusable  Delay. — ^Delay  in  making  presentment 
for  payment  is  excused  when  the  delay  ig  caused  by  circum- 
stances beyond  the  control  of  the  holder,  and  not  imputable 
to  his  default,  misconduct  or  negligence.  When  the  cause 
of  delay  ceases  to  operate,  presentment  must  be  made  with 
reasonable  diligence. 

§  3473.  Presentment  Unnecessary. — ^Presentment  for  pay- 
ment is  dispensed  with — (1)  "Where  after  the  exercise  of  rea- 
sonable diligence  presentment  as  required  by  this  act  cannot 
be  made;  (2)  where  the  drawee  is  a  fictitious  person;  (3) 
by  waiver  of  presentment,  express  or  implied. 

§  3474.  When  Dishonored. — The  instrument  is  dishonored 
by  nonpayment  when — (1)  it  is  duly  presented  for  payment 
ajid  payment  is  refused  or  cannot  be  obtained,  or  (2)  pre- 
sentment is  excused  and  the  instrument  is  overdue  and  un- 
paid. 

§  3475.  Dishonor  Attaches  Liability  to  Secondary  Par- 
ties.— Subject  to  the  provisions  of  this  act,  when  the  instru- 
ment is  dishonored  by  nonpayment,  an  immediate  right  of  re- 
course to  all  parties  secondarily  liable  thereon  accrues  to  the 
holder. 

§  34751/2-  ^0  Grace — Sundays  and  Holidays. — Every  ne- 
gotiable instrument  is  payable  at  the  time  fixed  therein  with- 
out grace.  When  the  day  of  maturity  falls  upon  Sunday 
or  a  holiday,  the  instrument  is  payable  on  the  next  succeed- 
ing business  day.  Instruments  falling  due  on  Saturday  are 
to  be  presented  for  payment  on  the  next  succeeding  business 
day,  except  that  instruments  payable  on  demand  may  at  the 
option  of  the  holder,  be  presented  for  payment  before  twelve 


270  LAW  FOR  NOTARIES  PUBLIC. 

o'clock  noon  on  Saturday  when  that  entire  day  is  not  a  holi- 
day. 

§  3476.  Computation  of  Time. — ^Where  the  instrument 
is  payable  at  a  fixed  period  after  date,  after  sight,  or  after 
the  happening  of  a  specified  event,  the  time  of  payment  is  de- 
termined by  excluding  the  day  from  which  the  time  is  to  begin 
to  run,  and  by  including  the  date  of  payment. 

§  3477.  *'PayaUe  at  Bank"  an  Order  on  Banfe.— Where 
the  instrument  is  made  payable  at  a  bank  it  is  equivalent 
to  an  order  to  the  bank  to  pay  the  same  for  the  account  of 
the  principal  debtor  thereon. 

§  3478.  Payment  in  Due  Course. — ^Payment  is  made  in 
due  course  when  it  is  made  at  or  after  the  maturity  of  the 
instrument  to  the  holder  thereof  in  good  faith  and  without 
notice  that  his  title  is  defective. 

§  3479.  Notice  of  Dishonor  Necessary  to  Charge. — Except 
as  herein  Otherwise  provided,  when  a  negotiable  instrument 
has  been  dishonored  by  nonacceptance  or  nonpayment,  notice 
of  dishonor  must  be  given  to  the  drawer  and  to  each  indorser, 
and  any  drawer  or  indorser  to  whom  such  notice  is  not  given 
is  discharged. 

§  3480.  Who  may  Give  Notice. — The  notice  may  be  given 
by  or  on  behalf  of  the  holder,  or  by  or  on  behalf  of  any  party 
to  the  instrument  who  might  be  compelled  to  pay  it  to  the 
holder,  and  who,  upon  taking  it  up,  would  have  a  right  to  re- 
imbursement from  the  party  to  whom  th^  notice  is  given. 

§  3481.  Notice  by  Agent. — Notice  of  dishonor  may  be 
given  by  an  agent  either  in  his  own  name  or  in  the  name  of 
any  party  entitled  to  give  notice,  whether  that  party  be  his 
principal  or  not. 

§  3482.  Notice  ly  Holder,  Who  Benefits  hy. — Where  no- 
tice is  given  by  or  on  behalf  of  the  holder,  it  inures  for  the 
benefit  of  all  subsequent  holders  and  all  prior  parties  who 
have  a  right  of  recourse  against  the  party  to  whom  it  is  given. 

§  3483.  Notice  hy  Party  Entitled,  Who  Benefits.— Where 
notice  is  given  by  or  on  behalf  of  a  party  entitled  to  give  no- 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  271 

tice,  it  inures  for  the  benefit  of  the  holder  and  all  parties  sub- 
sequent to  the  party  to  whom  notice  is  given. 

§  3484.  Agent  may  Notify  Parties  or  Principal. — Where 
the  instrument  has  been  dishonored  in  the  hands  of  an  agent, 
he  may  either  himself  give  notice  to  the  parties  liable  thereon, 
or  he  may  give  notice  to  his  principal.  If  he  give  notice  to 
his  principal,  he  must  do  so  within  the  same  time  as  if  he  were 
the  holder,  and  the  principal  upon  the  receipt  of  such  notice 
has  himself  the  same  time  for  giving  notice  as  if  the  agent  had 
been  an  independent  holder. 

§  3485.  Sufficiency  of  Notice. — A  written  notice  need  not 
be  signed,  and  an  insufficient  written  notice  may  be  supple- 
mented and  validated  by  verbal  communication.  A  misde- 
scription of  the  instrument  does  not  vitiate  the  notice  unless 
the  party  to  whom  the  notice  is  given  is  in  fact  misled  thereby. 

§  3486.  Notice  may  be  Written  or  Oral. — The  notice  may 
be  in  writing  or  merely  oral  and  may  be  given  in  any  terms 
which  sufficiently  identify  the  instrument,  and  indicate  that 
it  has  been  dishonored  by  nonacceptance  or  nonpayment.  It 
may  in  all  cases  be  given  by  delivering  it  personally  or 
through  the  mails. 

§  3487.  Notice,  to  WJiom  Given. — ^Notice  of  dishonor  may 
be  given  either  to  the  party  himself  or  to  his  agent  in  that  be- 
half. 

§  3488.  Notice,  When  Party  Deceased. — ^When  any  party 
is  dead,  and  his  death  is  known  to  the  party  giving  notice,  the 
notice  must  be  given  to  a  personal  representative,  if  there  be 
one,  and  if  with  reasonable  diligence  he  can  be  found.  If 
there  be  no  personal  representative,  notice  may  be  sent  to  the 
last  residence  or  last  place  of  business  of  the  deceased. 

§  3489.  Notice  to  One  of  Partners. — Where  the  parties  to 
be  notified  are  partners,  notice  to  any  one  partner  is  notice  to 
the  firm,  even  though  there  has  been  a  dissolution. 

§  3490.  Joint  Parties,  Notice  to  Each. — Notice  to  joint 
parties  who  are  not  partners  must  be  given  to  each  of  them, 


272  LAW  FOR  NOTARIES  PUBLIC. 

unless  one  of  them  has  authority  to  receive  such  notice  for  the 
others. 

§  3491.  Insolvency — Notice  to  Whom. — ^Where  a  party  has 
been  adjudged  a  bankrupt  or  an  insolvent,  or  has  made  an 
assignment  for  the  benefit  of  creditors,  notice  may  be  given 
either  to  the  party  himself  or  to  his  trustee  or  assignee. 

§  3492.  Notice  Immediately  upon  Dishonor. — ^Notice  may 
be  given  as  soon  as  the  instrument  is  dishonored;  and  unless 
delay  is  excused  as  hereinafter  provided,  must  be  given  within 
the  times  fixed  by  this  act. 

§  3493.  Parties  Living  in  the  Same  Place,  Notice  When. — 
Where  the  person  giving  and  the  person  to  receive  notice  re- 
side in  the  same  place,  notice  must  be  given  within  the  follow- 
ing times — (1)  If  given  at  the  place  of  business  of  the 
person  to  receive  notice,  it  must  be  given  before  the  close  of 
business  hours  on  the  day  following;  (2)  if  given  at  his  resi- 
dence, it  must  be  given  before  the  usual  hours  of  rest  on  the 
day  following;  (3)  if  sent  by  mail,  it  must  be  deposited  in  the 
postoffice  in  time  to  reach  him  in  usual  course  on  the  day  fol- 
lowing. 

§  3494.  Living  in  Different  Places,  Notice  When. — ^Where 
the  person  giving  and  the  person  to  receive  notice  reside  in 
different  places,  the  notice  must  be  given  within  the  follow- 
ing times — (1)  If  sent  by  mail  it  must  be  deposited  in  the 
postoffice  in  time  to  go  by  mail  the  day  following  the  day  of 
dishonor,  or  if  there  be  no  mail  at  a  convenient  hour  on  that 
day,  by  the  next  mail  thereafter.  (2)  If  given  otherwise 
than  through  the  postoffice,  then  within  the  time  that  notice 
would  have  been  received  in  due  course  of  mail,  if  it  had  been 
deposited  in  the  postoffice  within  the  time  specified  in  the  last 
subdivision. 

§  3495,  Notice  hy  Mail. — ^Where  notice  of  dishonor  is  duly 
addressed  and  deposited  in  the  postoffice,  the  sender  is  deemed 
to  have  given  due  notice,  notwithstanding  any  miscarriage  in 
the  mails. 

§  3496.  Deposited  in  Postoffice,  When. — ^Notice  is  deemed 
to  have  been  deposited  in  the  postoffice  when  deposited  in  any 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  273 

brancli  postoffice  or  in  any  letter-box  under  the  control  of  the 
postoffiee  department. 

§  3497.  Notice  to  Antecedent  Parties. — Where  a  party  re- 
ceives notice  of  dishonor,  he  has,  after  the  receipt  of  such 
notice,  the  same  time  for  giving  notice  to  antecedent  parties 
that  the  holder  has  after  the  dishonor. 

§  3498.  Notice,  Where  Addressed.— Where  a  party  has 
added  an  address  to  his  signature,  notice  of  dishonor  must  be 
sent  to  that  address;  but  if  he  has  not  given  such  address, 
then  the  notice  must  be  sent  as  follows — (1)  Either  to  the 
postoffice  nearest  to  his  place  of  residence,  or  to  the  postoffice 
where  he  is  accustomed  to  receive  his  letters;  or  (2)  if  he  live 
in  one  place,  and  have  his  place  of  business  in  another,  notice 
may  be  sent  to  either  place;  or  (3)  if  he  is  sojourning  in  an- 
other place,  notice  may  be  sent  to  the  place  where  he  is 
sojourning.  But  where  the  notice  is  actually  received  by  the 
party  within  the  time  specified  in  this  act,  it  will  be  sufficient, 
though  not  sent  in  accordance  with  the  requirements  of  this 
section. 

§  3499.  Waiver  of  Notice. — Notice  of  dishonor  may  be 
waived  either  before  the  time  of  giving  notice  has  arrived,  or 
after  the  omission  to  give  due  notice,  and  the  waiver  may  be 
express  or  implied. 

§  3500.  What  Parties  Bound  hy  Waiver  of  Notice. — 
"Where  the  waiver  is  embodied  in  the  instrument  itself,  it  is 
binding  upon  all  parties;  but  where  it  is  written  above  the 
signature  of  an  indorser,  it  binds  him  only. 

§  3501.  Waiver  of  Protest  Waives  Notice  of  Presentment 
and  Dishonor. — A  waiver  of  protest,  whether  in  case  of  a 
foreign  bill  of  exchange  or  other  negotiable  instrument,  is 
deemed  to  be  a  waiver,  not  only  of  a  formal  protest,  but  also 
of  presentment  and  notice  of  dishonor. 

§  3502.    Notice  of  Dishonor  Dispensed  With  When. — ^No- 
tice of  dishonor  is  dispensed  with  when,  after  the  exercise  ot 
reasonable  diligence,  it  cannot  be  given  to  or  does  not  reach 
the  parties  sought  to  be  charged. 
18 


274  LAW  FOR  NOTARIES  PUBLIC. 

§  3503.  Excusable  Delay. — Delay  in  giving  notice  of  dis- 
honor is  excused  when  the  delay  is  caused  by  circumstances 
beyond  the  control  of  the  holder,  and  not  imputable  to  his  de- 
fault, misconduct  or  negligence.  When  the  cause  of  delay 
ceases  to  operate,  notice  must  be  given  with  reasonable  dili- 
gence. 

§  3504.  When  Drawer  not  Entitled  to  Notice  of  Dishonor. 
Notice  of  dishonor  is  not  required  to  be  given  to  the  drawer 
in  either  of  the  following  cases — (1)  When  the  drawer  and 
drawee  are  the  same  person;  (2)  where  the  drawee  is  a  ficti- 
tious person  or  a  person  not  having  capacity  to  contract;  (3) 
when  the  drawer  is  the  person  to  whom  the  instrument  is  pre- 
sented for  payment;  (4)  where  the  drawer  has  no  right  to 
expect  or  require  that  the  drawee  or  acceptor  will  honor  the 
instrument;  (5)  where  the  drawer  has  countermanded  pay- 
ment. 

§  3505.  When  Indorser  not  Entitled  to  Notice. — ^Notice  of 
dishonor  is  not  required  to  be  given  to  an  indorser  in  either 
of  the  following  cases — (1)  Where  the  drawee  is  a  fictitious 
person  or  a  person  not  having  capacity  to  contract,  and  the 
indorser  was  aware  of  the  fact  at  the  time  he  indorsed  the  in- 
strument; (2)  where  the  indorser  is  the  person  to  whom  the 
instrument  is  presented  for  payment;  (3)  where  the  instru- 
ment was  made  or  accepted  for  his  accommodation. 

§  3506.  Notice  of  Nonacceptance,  Effect  of. — Where  due 
notice  of  dishonor  by  nonacceptance  has  been  given  notice  of 
subsequent  dishonor  by  nonpayment  is  not  necessary,  unless 
in  the  meantime  the  instrument  has  been  accepted. 

§  3507.  Omission  of  Notice. — An  omission  to  give  notice  of 
dishonor  by  nonacceptance  does  not  prejudice  the  rights  of  a 
holder  in  due  course  subsequent  to  the  omission. 

§  3508.  Protest  Required  Only  on  Foreign  Bills. — Where 
any  negotiable  instrument  has  been  dishonored  it  may  be  pro- 
tested for  nonacceptance  or  nonpayment ,  as  the  case  may  be ; 
but  protest  is  not  required  except  in  the  case  of  foreign  bills 
of  exchange. 


PROTESTING   NEGOTIABLE  INSTRUMENTS.  275 

§  3509.  Discharge  of  Instrument,  How  Effected. — A  nego- 
tiable instrument  is  discharged — (1)  By  payment  in  due 
course  by  or  on  behalf  of  the  principal  debtor;  (2)  by  pay- 
ment in  due  course  by  the  party  accommodated,  where  the 
instrument  is  made  or  accepted  for  accommodation;  (3)  by 
the  intentional  cancellation  thereof  by  the  holder ;  (4)  by  any 
other  act  which  will  discharge  a  simple  contract  for  the  pay- 
ment of  money;  (5)  when  the  principal  debtor  becomes  the 
holder  of  the  instrument  at  or  after  maturity  in  his  own  right. 

§  3510.  Discharge  of  Parties  Secondarily  Liable. — A  per- 
son secondarily  liable  on  the  instrument  is  discharged — (1) 
By  any  act  which  discharges  the  instrument;  (2)  by  the  in- 
tentional cancellation  of  his  signature  by  the  holder;  (3)  by 
the  discharge  of  a  prior  party;  (4)  by  a  valid  tender  of  pay- 
ment made  by  a  prior  party;  (5)  by  a  release  of  the  principal 
debtor,  unless  the  holder's  right  of  recourse  against  the  party 
secondarily  liable  is  expressly  reserved;  (6)  by  any  agree- 
ment binding  upon  the  holder  to  extend  the  time  of  payment, 
or  to  postpone  the  holder's  right  to  enforce  the  instrument, 
unless  made  with  the  assent  of  the  party  secondarily  liable, 
or  unless  the  right  of  recourse  against  such  party  is  expressly 
reserved. 

§  3511.  Renegotiation  hy  Secondary  Party. — Where  the 
instrument  is  paid  by  a  party  secondarily  liable  thereon,  it  is 
not  discharged ;  but  the  party  so  paying  it  is  remitted  to  his 
former  rights  as  regards  all  prior  parties,  and  he  may  strike 
out  his  own  and  all  subsequent  indorsements,  and  again  nego- 
tiate the  instrument,  except — (1)  where  it  is  payable  to  the 
order  of  a  third  person,  and  has  been  paid  by  the  drawer; 
and  (2)  where  it  was  made  or  accepted  for  accommodation, 
and  has  been  paid  by  the  party  accommodated. 

§  3512.  Holder's  Renunciation  of  Rights. — The  holder 
may  expressly  renounce  his  rights  against  any  party  to  the 
instrument,  before,  at,  or  after  its  maturity.  An  absolute 
and  unconditional  renunciation  of  his  rights  against  the  prin- 
cipal debtor  made  at  or  after  the  maturity  of  the  instrument 
discharges  the  instrument  But  a  renunciation  does  not 
affect  the  rights  of  a  holder  in  due  course  without  notice. 


276  LAW   FOB  NOTARIES  PUBLIC. 

!A.  renunciation  must  be  in  writing,  unless  the  instrument  is 
delivered  up  to  the  person  primarily  liable  thereon. 

§  3513.  UnintentioTial  Cancellation — Burden  of  Proof. — 
A  cancellation  made  unintentionally,  or  under  a  mistake,  or 
without  the  authority  of  the  holder,  is  inoperative ;  but  where 
an  instrument  or  any  signature  thereon  appears  to  have  been 
canceled  the  burden  of  proof  lies  on  the  party  who  alleges  that 
the  cancellation  was  made  unintentionally,  or  under  a  mistake 
or  without  authority. 

§  3514.  Material  Alterations,  Effect  of. — Where  a  nego- 
tiable instrument  is  materially  altered  without  the  assent  of 
all  parties  liable  thereon,  it  is  avoided,  except  as  against  a 
party  who  has  himself  made,  authorized  or  assented  to  the 
alteration  and  subsequent  indorsers.  But  when  an  instru- 
ment has  been  materially  altered  and  is  in  the  hands  of  a 
holder  in  due  course,  not  a  party  to  the  alteration,  he  may  en- 
force payment  thereof  according  to  its  original  tenor. 

§  3515.  Material  Alterations  Defined. — ^Any  alteration 
which  changes — (1)  the  date;  (2)  the  sum  payable,  either  for 
principal  or  interest ;  (3)  the  time  or  place  of  payment ;  (4)  the 
number  or  the  relations  of  the  parties ;  (5)  the  medium  or  cur- 
rency in  which  payment  is  to  be  made ;  or  which  adds  a  place 
of  payment  where  no  place  of  payment  is  specified,  or  any 
other  change  or  addition  which  alters  the  effect  of  the  instru- 
ment in  any  respect,  is  a  material  alteration. . 

§  3516.  Bill  of  Exchange  Defined. — A  bill  of  exchange  is 
an  unconditional  order  in  writing  addressed  by  one  person  to 
another,  signed  by  the  person  giving  it,  requiring  the  person 
to  whom  it  is  addressed  to  pay  on  demand  or  at  a  fixed  or  de- 
terminable future  time  a  sum  certain  in  money  to  order  or  to 
bearer. 

§  3517.  Bill  not  an  Assignment — Drawee  Liable  on  Ac- 
ceptance.— A  bill  of  itself  does  not  operate  as  an  assignment 
of  the  funds  in  the  hands  of  the  drawee  available  for  the  pay- 
ment thereof,  and  the  drawee  is  not  liable  on  the  bill  unless 
and  until  he  accepts  the  same. 


PROTESTING  NEGOTLVBLE  INSTRUMENTS.  277 

§  3518.  Joint  Drawees. — A  bill  may  be  addressed  to  two 
or  more  drawees  jointly,  whether  they  are  partners  or  not; 
but  not  to  two  or  more  drawees  in  the  alternative  or  in  succes- 
sion. 

§  3519.  Inland  mid  Foreign  Bills  Defined. — An  inland  bill 
of  exchange  is  a  bill  which  is,  or  on  its  face  purports  to  be, 
both  drawn  and  payable  within  this  state.  Any  other  bill  is 
a  foreign  bill.  Unless  the  contrary  appears  on  the  face  of  the 
bill,  the  holder  may  treat  it  as  an  inland  bill. 

§  3520.  Bill  may  he  Promissory  Note. — ^Where  in  a  bill 
drawer  and  drawee  are  the  same  person,  or  where  the  drawee 
is  a  fictitious  person,  or  a  person  not  having  capacity  to  con- 
tract, the  holder  may  treat  the  instrument,  at  his  option,  either 
as  a  bill  of  exchange  or  a  promissory  note. 

§  3521.  Beferee  in  Case  of  Need. — The  drawer  of  a  bill 
and  any  indorser  may  insert  thereon  the  name  of  a  person  to 
whom  the  holder  may  resort  in  case  of  need,  that  is  to  say  in 
case  the  bill  is  dishonored  by  nonacceptance  or  nonpayment. 
Such  person  is  called  the  referee  in  case  of  need.  It  is  in  the 
option  of  the  holder  to  resort  to  the  referee  in  case  of  need  or 
not  as  he  may  see  fit. 

§  3522.  Acceptance  Defined. — The  acceptance  of  a  bill  is 
the  signification  by  the  drawee  of  his  assent  to  the  order  of  the 
drawer.  The  acceptance  must  be  in  writing  and  signed  by 
the  drawee.  It  must  not  express  that  the  drawee  will  perform 
his  promise  by  any  other  means  than  the  payment  of  money. 

§  3523.  Holder  may  Bequire  Acceptance  in  Writing. — The 
holder  of  a  bill  presenting  the  same  for  acceptance  may  re- 
quire that  the  acceptance  be  written  on  the  bill,  and  if  such  a 
request  is  refused,  may  treat  the  bill  as  dishonored. 

§  3524.  Acceptance  on  Separate  Paper. — Where  an  ac- 
ceptance is  written  on  a  paper  other  than  the  bill  itself,  it  does 
not  bind  the  acceptor  except  in  favor  of  a  person  to  whom  it  is 
shown  and  who,  on  the  faith  thereof,  receives  the  bill  for 
value. 


278  LAW  FOR  NOTARIES  PUBLIC. 

§  3525.  Promise  to  Accept,  Effect  of. — An  unconditional 
promise  in  writing  to  accept  a  bill  before  it  is  drawn  is  deemed 
an  actual  acceptance  in  favor  of  every  person  who,  upon  the 
faith  thereof,  receives  the  bill  for  value. 

§  3526.  Grace. — The  drawee  is  allowed  twenty-four  hours 
after  presentment  in  which  to  decide  whether  or  not  he  will 
accept  the  bill ;  but  the  acceptance  if  given  dates  as  of  the  day 
of  presentation. 

§  3527.  When  Acceptance  Presumed. — Where  a  drawee  to 
whom  a  bill  is  delivered  for  acceptance  destroys  the  same,  or 
refuses  within  twenty-four  hours  after  such  delivery,  or 
within  such  other  period  as  the  holder  may  allow,  to  return 
the  bill  accepted  or  nonaccepted  to  the  holder,  he  will  be 
deemed  to  have  accepted  the  same. 

§  3528.  Time  of  Acceptance. — A  bill  may  be  accepted  be- 
fore it  has  been  signed  by  the  drawer,  or  while  otherwise  in- 
complete, or  when  it  is  overdue,  or  after  it  has  been  dishonored 
by  a  previous  refusal  to  accept  or  by  nonpayment.  But  when 
a  bill  payable  after  sight  is  dishonored  by  nonacceptance  and 
the  drawee  subsequently  accepts  it,  the  holder,  in  the  absence 
of  any  different  agreement,  is  entitled  to  have  the  bill  ac- 
cepted as  of  the  date  of  the  first  presentment. 

§  3529.  Acceptance  Either  General  or  Qualified. — An  ac- 
ceptance is  either  general  or  qualified.  A  general  acceptance 
assents  without  qualification  to  the  order  of  the  drawer.  A 
qualified  acceptance  in  express  terms  varies  the  effect  of  the 
bill  as  drawn. 

§  3530.  General  Acceptance  Defined. — An  acceptance  to 
pay  at  a  particular  place  is  a  general  acceptance,  unless  it  ex- 
pressly states  that  the  bill  is  to  be  paid  there  only  and  not 
elsewhere.  ^ 

§  3531.  Qualified  Acceptance  Defined. — An  acceptance  is 
qualified,  which  is:  (1)  Conditional,  that  is  to  say,  which 
makes  payment  by  the  acceptor  dependent  on  the  fulfillment 
of  a  condition  therein  stated;  (2)  partial,  that  is  to  say,  an 
acceptance  to  pay  part  only  of  the  amount  for  which  the  bill 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  279 

is  drawn;  (3)  local,  that  is  to  say,  an  acceptance  to  pay  only 
at  a  particular  place;  (4)  qualified  as  to  time;  (5)  the  accept- 
ance of  some  one  or  more  of  the  drawees,  but  not  of  all. 

§  3532.  Qualified  Acceptance,  Bights  of  Parties  Under. — 
The  holder  may  refuse  to  take  a  qualified  acceptance,  and  if 
he  does  not  obtain  an  unqualified  acceptance,  he  may  treat  the 
bill  as  dishonored  by  nonacceptance.  Where  a  qualified  ac- 
ceptance is  taken,  the  drawer  and  indorsers  are  discharged 
from  liability  on  the  bill,  unless  they  have  expressly  or  im- 
pliedly authorized  the  holder  to  take  a  qualified  acceptance, 
or  subsequently  assent  thereto.  When  the  drawer  or  an  in- 
dorser  receives  notice  of  a  qualified  acceptance,  he  must, 
within  a  reasonable  time,  express  his  dissent  to  the  holder,  or 
he  will  be  deemed  to  have  assented  thereto. 

§  3533.  Presentment  for  Acceptance,  When  Necessary. — 
Presentment  for  acceptance  must  be  made:  (1)  Where  the  bill 
is  payable  after  sight,  or  in  any  other  case,  where  presentment 
for  acceptance  is  necessary  in  order  to  fix  the  maturity  of  the 
instrument;  or  (2)  where  the  bill  expressly  stipulates  that  it 
shall  be  presented  for  acceptance;  or  (3)  where  the  bill  is 
drawn  payable  elsewhere  than  at  the  residence  or  place  of 
business  of  the  drawee.  In  no  other  case  is  presentment  for 
acceptance  necessary  in  order  to  render  any  party  to  the  bill 
liable. 

§  3534.  Discharge  of  Drawer  hy  Failure  to  Present. — Ex- 
cept as  herein  otherwise  provided,  the  holder  of  a  bill  which 
is  required  by  the  next  preceding  section  to  be  presented  for 
acceptance  must  either  present  it  for  acceptance  or  negotiate 
it  within  a  reasonable  time.  If  he  fail  to  do  so,  the  drawer 
and  all  indorsers  are  discharged. 

§  3535.  Presentment  to  Whom  and  When. — ^Presentment 
for  acceptance  must  be  made  by  or  on  behalf  of  the  holder  at 
a  reasonable  hour,  on  a  business  day  and  before  the  bill  is 
overdue,  to  the  drawee  or  some  person  authorized  to  accept  or 
refuse  acceptance  on  his  behalf;  and  (1)  where  a  bill  is  ad- 
dressed to  two  or  more  drawees  who  are  not  partners,  present- 
ment must  be  made  to  them  all,  unless  one  has  authority  to 


280  LAW  FOE  NOTARIES  PUBLIC. 

accept  or  refuse  acceptance  for  all,  in  which  case  presentment 
may  be  made  to  him  only.  (2)  Where  the  drawee  is  dead, 
presentment  may  be  made  to  his  personal  representative.  (3) 
Where  the  drawee  has  been  adjudged  a  bankrupt  or  an  in- 
solvent, or  has  made  an  assignment  for  the  benefit  of  creditors, 
presentment  may  be  made  to  him  or  to  his  trustee  or  assignee. 

§  3536.  Presentment  on  What  Days. — A  bill  may  be  pre- 
sented for  acceptance  on  any  day  on  which  negotiable  instru- 
ments may  be  presented  for  payment  under  the  provisions  of 
sections  3463  and  34751/2-  When  Saturday  is  not  otherwise 
a  holiday,  presentment  for  acceptance  may  be  made  before 
twelve  o'clock,  noon,  on  that  day. 

§  3537.  Failure  to  Present,  Excusable  When. — Where  the 
holder  of  a  bill  drawn  payable  elsewhere  than  at  the  place  of 
business  or  the  residence  of  the  drawee  has  not  time  with  the 
exercise  of  reasonable  diligence  to  present  the  bill  for  accept- 
ance before  presenting  it  for  payment  on  the  day  that  it  falls 
due,  the  delay  caused  by  presenting  the  bill  for  acceptance 
before  presenting  it  for  payment  is  excused  and  does  not  dis- 
charge the  drawers  and  indorsers. 

§  3538.  Presentment  Excused,  When. — ^Presentment  for 
acceptance  is  excused,  and  a  bill  may  be  treated  as  dishonored 
by  nonacceptance,  in  either  of  the  following  cases — (1)  Where 
the  drawee  is  dead  or  has  absconded  or  is  a  fictitious  person, 
or  a  person  not  having  capacity  to  contract  by  bill ;  (2)  where, 
after  the  exercise  of  reasonable  diligence,  presentment  cannot 
be  made;  (3)  where,  although  presentment  has  been  irregular, 
acceptance  has  been  refused  on  some  other  ground. 

§  3539.  Dishonor  hij  Nonacceptance. — A  bill  is  dishonored 
by  nonacceptance — (1)  When  it  is  duly  presented  for  accept- 
ance and  such  an  acceptance  as  is  prescribed  by  this  act  is 
refused  or  cannot  be  obtained;  or  (2)  when  presentment  for 
acceptance  is  excused  and  the  bill  is  not  accepted. 

§  3540.  Dishonored  When  not  Promptly  Accepted. — 
Where  a  bill  is  duly  presented  for  acceptance  and  is  not  ac- 
cepted within  the  prescribed  time,  the  person  presenting  it 


PROTESTING   NEGOTIABLE   INSTRUMENTS.  281 

must  treat  the  bill  as  dishonored  by  nonacceptanee  or  he  loses 
the  right  of  recourse  against  the  drawer  and  indorser. 

§  3541.  Effect  of  Dishonor  by  Nonacceptanee. — When  a 
bill  is  dishonored  by  nonacceptanee,  an  immediate  right  of  re- 
course against  the  drawers  and  indorsers  accrues  to  the  holder 
and  no  presentment  for  payment  is  necessary. 

§  3542,  Protest  Necessary  on  Foreign  Bills. — Where  a 
foreign  bill  appearing  on  its  face  to  be  such  is  dishonored  by 
nonacceptanee,  it  must  be  duly  protested  for  nonacceptanee, 
and  where  such  a  bill  which  has  not  previously  been  dis- 
honored by  nonacceptanee  is  dishonored  by  nonpayment  it 
must  be  duly  protested  for  nonpayment.  If  it  is  not  so  pro- 
tested, the  drawer  and  indorsers  are  discharged.  Where  a 
bill  does  not  appear  on  its  face  to  be  a  foreign  bill,  protest 
thereof  in  case  of  dishonor  is  unnecessary, 

§  3543,  What  Protest  must  Specify. — The  protest  must  be 
annexed  to  the  bill,  or  must  contain  a  copy  thereof,  and  must 
be  under  the  hand  and  seal  of  the  notary  making  it,  and  must 
specify — (1)  the  time  and  place  of  presentment;  (2)  the  fact 
that  presentment  was  made  and  the  manner  thereof;  (3)  the 
cause  or  reason  for  protesting  the  bill;  (4)  the  demand  made 
and  the  answer  given,  if  any,  or  the  fact  that  the  drawee  or 
acceptor  could  not  be  found. 

§  3544,  Who  may  MaJce  Protest. — Protest  may  be  made 
by — (1)  a  notary  public;  or  (2)  by  any  respectable  (respon- 
sible) resident  of  the  place  where  the  bill  is  dishonored,  in  the 
presence  of  two  or  more  credible  witnesses. 

§  3545,  When  Protest  must  he  Made. — When  a  bill  is  pro- 
tested, such  protest  must  be  made  on  the  day  of  its  dishonor, 
unless  delay  is  excused  as  herein  provided.  When  a  bill  has 
been  duly  noted,  the  protest  may  be  subsequently  extended  as 
of  the  date  of  the  noting. 

§  3546,  Place  of  Protest. — A  bill  must  be  protested  at  the 
place  where  it  is  dishonored,  except  that  when  a  bill  drawn 
payable  at  the  place  of  business,  or  residence,  of  some  person 
other  than  the  drawee,  has  been  dishonored  by  nonacceptanee, 


282  LAW  FOB  NOTARIES  PUBLIC. 

it  must  be  protested  for  nonpayment  at  the  place  where  it  is 
expressed  to  be  payable,  and  no  further  presentment  for  pay- 
ment to,  or  demand  on,  the  drawee  is  necessary. 

§  3547.  Protest  for  Both  Nonacceptance  and  Nonpayment. 
A  bill  which  has  been  protested  for  nonacceptance  may  be 
subsequently  protested  for  nonpayment. 

§  3548.  Insolvency,  Effect  of. — Where  the  acceptor  has 
been  adjudged  a  bankrupt  or  an  insolvent  or  has  made  an 
assignment  for  the  benefit  of  creditors,  before  the  bill  matures, 
the  holder  may  cause  the  bill  to  be  protested  for  better  secur- 
ity against  the  drawer  and  indorsers. 

§  3549.  Protest  Excused,  When. — ^Protest  is  dispensed 
with  by  any  circumstances  which  would  dispense  with  notice 
of  dishonor.  Delay  in  noting  or  protesting  is  excused  when 
delay  is  caused  by  circumstances  beyond  the  control  of  the 
holder  and  not  imputable  to  his  default,  misconduct,  or  neg- 
ligence. When  the  cause  of  delay  ceases  to  operate,  the  bill 
must  be  noted  or  protested  with  reasonable  diligence. 

§  3550.  Lost  Bill. — Where  a  bill  is  lost  or  destroyed  or  is 
wrongly  detained  from  the  person  entitled  to  hold  it,  protest 
may  be  made  on  a  copy  or  written  particulars  thereof. 

§  3551.  Acceptance  for  Honor.^^— Where  a  bill  of  exchange 
has  been  protested  for  dishonor  by  nonacceptance  or  protested 
for  better  security  and  is  not  overdue,  any  person  not  being 
a  party  already  liable  thereon  may,  with  the  consent  of  the 
holder,  intervene  and  accept  the  bill  supra  protest  for  the 
honor  of  any  party  liable  thereon  or  for  the  honor  of  the  per- 
son for  whose  account  the  bill  is  drawn.  The  acceptance  for 
honor  may  be  for  part  only  of  the  sum  for  which  the  bill  is 
drawn;  and  where  there  has  been  an  acceptance  for  honor 
for  one  party,  there  may  be  a  further  acceptance  by  a  differ- 
ent person  for  the  honor  of  another  party. 

§  3552.  How  Made. — An  acceptance  for  honor  supra  pro- 
test must  be  in  writing  and  indicate  that  it  is  an  acceptance 
for  honor,  and  must  be  signed  by  the  acceptor  for  honor. 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  283 

§  3553.  Presumed  for  Honor  of  Drawer. — Where  an  ac- 
ceptance for  honor  does  not  expressly  state  for  whose  honor 
it  is  made,  it  is  deemed  to  be  an  acceptance  for  the  honor  of 
the  drawer. 

§  3554.  Liability  of  Acceptor  for  Honor. — The  acceptor 
for  honor  is  liable  to  the  holder  and  to  all  parties  to  the  bill 
subsequent  to  the  party  for  whose  honor  he  has  accepted. 

§  3555.  Acceptor  for  Honor's  Undertaking, — The  ac- 
ceptor for  honor  by  such  acceptance  engages  that  he  will  on 
due  presentment  pay  the  bill  according  to  the  terms  of  his  ac- 
ceptance :  Provided,  it  shall  not  have  been  paid  by  the  drawee ; 
and  provided  also  that  it  shall  have  been  duly  presented  for 
payment  and  protested  for  nonpayment  and  notice  of  dis- 
honor given  to  him. 

§  3556.  Maturity  of  Bill  Accepted  for  Honor. — Where  a 
bill  payable  after  sight  is  accepted  for  honor,  its  maturity  is 
calculated  from  the  date  of  the  noting  for  nonacceptance  and 
not  from  the  date  of  the  acceptance  for  honor. 

§  3557.  When  Protest  Necessary. — Where  a  dishonored 
bill  has  been  accepted  for  honor  supra  protest  or  contains  a 
reference  in  case  of  need,  it  must  be  protested  for  nonpayment 
before  it  is  presented  for  payment  to  the  acceptor  for  honor 
or  referee  in  case  of  need. 

§  3558,  Presentment  for  Payment  to  Acceptor  for  Honor. 
Presentment  for  payment  to  the  acceptor  for  honor  must  be 
made  as  follows:  (1)  If  it  is  to  be  presented  in  the  place 
where  the  protest  for  nonpayment  was  made,  it  must  be  pre- 
sented not  later  than  the  day  following  its  maturity.  (2)  If 
it  is  to  be  presented  in  some  other  place  than  the  place  where 
it  was  protested,  then  it  must  be  forwarded  within  the  time 
specified  in  section  3494. 

§  3559.  Delay  in  Presentment  Excused. — The  provisions 
of  section  3472  apply  where  there  is  delay  in  making  present- 
ment to  the  acceptor  for  honor  or  referee  in  case  of  need. 


284  LAW  FOR  NOTARIES  PUBLIC. 

§  3560.  Protest  Necessary. — When  the  bill  is  dishonored 
by  the  acceptor  for  honor  it  must  be  protested  for  nonpay- 
ment by  him. 

§  3561.  Payment  for  Honor. — Where  a  bill  has  been  pro- 
tested for  nonpayment,  any  person  may  intervene  and  pay  it 
supra  protest  for  the  honor  of  any  person  liable  thereon  or  for 
the  honor  of  the  person  for  whose  account  it  was  drawn. 

§  3562.  Attestation  hy  Notary. — The  payment  for  honor 
supra  protest  in  order  to  operate  as  such  and  not  as  a  mere 
voluntary  payment  must  be  attested  by  a  notarial  act  of  honor, 
which  may  be  appended  to  the  protest  or  form  an  extension 
to  it. 

§  3563.  Declaration  Necessary. — The  notarial  act  of  honor 
must  be  founded  on  a  declaration  made  by  the  payor  for 
honor,  or  by  his  agent  in  that  behalf,  declaring  his  intention 
to  pay  the  bill  for  honor  and  for  whose  honor  he  pays. 

§  3564.  Preference  Between  Two  Offering  Payment. — 
Where  two  or  more  persons  offer  to  paj''  a  bill  for  the  honor 
of  different  parties,  the  person  whose  payment  will  discharge 
most  parties  to  the  bill  is  to  be  given  the  preference. 

§  3565.  Payer  for  Honor  Subrogated. — Where  a  bill  has 
been  paid  for  honor,  all  parties  subsequent  to  the  party  for 
whose  honor  it  is  paid  are  discharged,  but  the  payor  for  honor 
is  subrogated  for,  and  succeeds  to,  both  the  rights  and  duties 
of  the  holder  as  regards  the  party  for  whose  honor  he  pays 
and  all  parties  liable  to  the  latter. 

§  3566.  Refusal  to  Receive  Payment  Supra  Protest. — 
Where  the  holder  of  a  bill  refuses  to  receive  payment  supra 
protest,  he  loses  his  right  of  recourse  against  any  party  who 
would  have  been  discharged  by  such  payment. 

§  3567.  Payer  for  Honor  Entitled  to  Bill  and  Protest. — 
The  payor  for  honor,  on  paying  to  the  holder  the  amount  of 
the  bill  and  the  notarial  expenses  incidental  to  its  dishonor,  is 
entitled  to  receive  both  the  bill  itself  and  the  protest. 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  285 

§  3568.  When  Set  Constitutes  One  Bill. — Where  a  bill  is 
drawn  in  a  set,  each  part  of  the  set  being  numbered  and  con- 
taining a  reference  to  the  other  parts,  the  whole  of  the  parts 
constitute  one  bill. 

§  3569.  Negotiation  of  Parts  to  Different  Holders. — 
Where  two  or  more  parts  of  a  set  are  negotiated  to  different 
holders  in  due  course,  the  holder  whose  title  first  accrues  is 
as  between  such  holders  the  true  owner  of  the  bill.  But  noth- 
ing in  this  section  affects  the  rights  of  a  person  who  in  due 
course  accepts  or  pays  the  part  first  presented  to  him. 

§  3570.  Indorsement  to  Different  Parties — Liability. — 
Where  the  holder  of  a  set  indorses  two  or  more  parts  to  differ- 
ent persons,  he  is  liable  on  every  such  part,  and  every  indorser 
subsequent  to  him  is  liable  on  the  part  he  has  himself  indorsed, 
as  if  such  parts  were  separate  bills. 

§  3571.  Acceptance  of  Different  Parts. — The  acceptance 
may  be  written  on  any  part  and  it  must  be  written  on  one 
part  only.  If  the  drawee  accepts  more  than  one  part,  and 
such  accepted  parts  are  negotiated  to  different  holders  in  due 
course,  he  is  liable  on  every  such  part  as  if  it  were  a  separate 
bill. 

§  3572.  Payment,  When  a  Part  not  Delivered. — When  the 
acceptor  of  a  bill  drawn  in  a  set  pays  it  without  requiring  the 
part  bearing  his  acceptance  to  be  delivered  up  to  him,  and 
that  part  at  maturity  is  outstanding  in  the  hands  of  a  holder 
in  due  course,  he  is  liable  to  the  holder  thereon. 

§  3573.  Discharge  of  Part  Discharges  Whole. — Except  as 
herein  otherwise  provided  where  any  one  part  of  a  bill  drawn 
in  a  set  is  discharged  by  payment  or  otherwise,  the  whole  bill 
is  discharged, 

§  3574.  Promissory  Note  Defined. — A  negotiable  promis- 
sory note  within  the  meaning  of  this  act  is  an  unconditional 
promise  in  writing  made  by  one  person  to  another  signed  by 
the  maker  engaging  to  pay  on  demand,  or  at  a  fixed  or  deter- 
minable future  time,  a  sum  certain  in  money  to  order  or  to 


286  liAW   FOB  NOTARIES   PUBLIC. 

bearer.    Where  a  note  is  drawn  to  the  maker's  own  order,  it 
is  not  complete  until  indorsed  by  him. 

§  3575.  Check  Defined. — A  cheek  is  a  bill  of  exchange 
drawn  on  a  bank,  payable  on  demand.  Except  as  herein 
otherwise  provided,  the  provisions  of  this  act  applicable  to  a 
bill  of  exchange  payable  on  demand  apply  to  a  check. 

§  3576.  Presentment  of  Check. — A  check  must  be  pre- 
sented for  payment  within  a  reasonable  time  after  its  issue  or 
the  drawer  will  be  discharged  from  liability  thereon  to  the 
extent  of  the  loss  caused  by  the  delay. 

§  3577.  Certification  an  Acceptance. — Where  a  check  is 
certified  by  the  bank  on  which  it  is  drawn,  the  certification  is 
equivalent  to  an  acceptance. 

§  3578.  Certificate  Discharges  Drawer. — Where  the  holder 
of  a  check  procures  it  to  be  accepted  or  certified,  the  drawer 
and  all  indorsers  are  discharged  from  liability  thereon. 

§  3579.  Check,  not  an  Assignment. — A  check  of  itself  does 
not  operate  as  an  assignment  of  any  part  of  the  funds  to  the 
credit  of  the  drawer  with  the  bank,  and  the  bank  is  not  liable 
to  the  holder  unless  and  until  it  accepts  or  certifies  the  check. 

§  3580.  Style  of  Act. — This  act  shall  be  known  as  the 
Negotiable  Instruments  Act. 

§  3581.  Definition  of  Terms. — ^In  this  act  unless  the  con- 
text otherwise  requires, — 

**  Acceptance"  means  an  acceptance  completed  by  delivery 
or  notification. 

"Action"  includes  counterclaim  and  setoff. 

"Bank"  includes  any  person  or  association  of  persons  car- 
rying on  the  business  of  banking,  whether  incorporated  or 
not, 

"Bearer"  means  the  person  in  possession  of  a  bill  or  note 
which  is  payable  to  bearer. 

"Bill"  means  bill  of  exchange,  and  "note"  means  nego- 
tiable promissory  note. 


PROTESTING  NEGOTIABLE   INSTRUMENTS.  287 

"Delivery"  means  transfer  of  possession,  actual  or  con- 
structive, from  one  person  to  another. 

"Holder"  means  the  payee  or  indorsee  of  a  bill  or  note, 
who  is  in  possession  of  it,  or  the  bearer  thereof. 

"Indorsement"  means  an  indorsement  completed  by  de- 
livery. 

"Instrument"  means  negotiable  instrument. 
"Issue"  means  the  first  delivery  of  the  instrument,  com- 
plete in  form,  to  a  person  who  takes  it  as  a  holder. 

"Person"  includes  a  body  of  persons,  whether  incorpo- 
rated or  not. 

"Value"  means  valuable  consideration. 

"Written"  includes  printed,  and  "writing"  includes  print. 

§  3582.  WTio  Primarily  and  Who  Secondarily  Liable. — 
The  person  "primarily"  liable  on  an  instrument  is  a  person 
who,  by  the  terms  of  the  instrument,  is  absolutely  required  to 
pay  the  same.     All  other  parties  are  "secondarily"  liable. 

§  3583.  Reasonable  Time,  How  Determined. — In  deter- 
mining what  is  a  "reasonable  time"  or  an  "unreasonable 
time,"  regard  is  to  be  had  to  the  nature  of  the  instrument, 
the  usage  of  trade  or  business,  if  any,  with  respect  to  such  in- 
struments, and  the  facts  of  the  particular  case. 

§  3584.  Sundays  and  Holidays. — Where  the  day,  or  the 
last  day,  for  doing  any  act  herein  required  or  permitted  to 
be  done  falls  on  Sunday  or  on  a  holiday,  the  act  may  h,e  done 
on  the  next  succeeding  secular  or  business  day. 

§  3585.  Act  not  Retroactive. — The  provisions  of  this  act 
do  not  apply  to  negotiable  instruments  made  and  delivered 
prior  to  the  passage  thereof. 

§  3586.  Law-mercJiant. — In  any  ease  not  provided  for  in 
this  act  the  rules  of  the  law-merchant  shall  govern. 

MISCELLANEOUS  ACTS. 

§  173.  Legal  Holidays. — "The  following  days  are  legal 
holidays,  namely:  Sunday;  the  first  day  of  January,  com- 
monly called  New  Yeai''s  day;  the  fourth  day  of  Julyj  the 


288  LAW  FOR  NOTARIES  PUBLIC. 

twenty-second  day  of  February ;  the  twenty-fifth  day  of  De- 
cember, commonly  called  Christmas  day;  and  any  day  desig- 
nated by  public  proclamation  of  the  chief  executive  of  the 
state  as  a  legal  holiday,  or  as  a  day  of  thanksgiving;  the 
day  known  and  observed  as  Memorial  or  Decoration  Day; 
and  the  day  on  which  a  general  election  is  held  throughout 
the  state":  Laws  1891,  p.  80,  §  1;  2  H.  C,  §  42;  Bal.  Code, 
§  4709;  Rem.  &  Bal.  Code,  §  61. 

**The  first  Monday  of  September  of  each  year  is  hereby 
declared  to  be  a  legal  holiday  in  the  state  of  Washington,  to 
be  kno^^^^  as  Labor  Day":  Laws  1891,  p.  39,  §1;  2  H.  C, 
§  43;  Bal.  Code,  §  4710;  Rem.  &  Bal.  Code,  §  62. 

**The  twelfth  day  of  February  of  each  year,  the  same  be- 
ing the  anniversary  of  the  birth  of  Abraham  Lincoln,  be 
and  it  is  hereby  declared  to  be  a  legal  holiday  in  the  state 
of  Washington":  Laws  1895,  p.  6,  §  1;  Bal.  Code,  §  4711; 
Rem.  &  Bal.  Code,  §  63. 

§  174.  Interest. — "Every  loan  or  forbearance  of  money, 
goods,  or  thing  in  action  shall  bear  interest  at  the  rate  of  six 
per  centum  per  annum  where  no  different  rate  is  agreed  to 
in  writing  between  the  parties.  The  discounting  of  com- 
mercial paper,  where  the  borrower  makes  himself  liable  as 
maker,  guarantor  or  indorser,  shall  be  considered  as  a  loan 
for  the  purposes  of  this  chapter":  Laws  1899,  p.  128,  §  1; 
Bal.  Code,  §  3668;  Rem.  &  Bal.  Code,  §  6250.  "Any  rate  of 
interest  not  exceeding  twelve  (12)  per  centum  per  annum 
agreed  to  in  writing  by  the  parties  to  the  contract,  shall  be 
legal,  and  no  person  shall  directly  or  indirectly  take  or  re- 
ceive in  money,  goods  or  thing  in  action,  or  in  any  other 
way,  any  greater  interest,  sum  or  value  for  the  loan  or  for- 
bearance of  any  money,  goods  or  thing  in  action  than  twelve 
(12)  per  centum  per  annum":  Laws  1899,  p.  128,  §  2;  Bal. 
Code,  §  3669 ;  Rem.  &  Bal.  Code,  §  6251. 

§  175.  Bills  of  Lading:  Warehouse  Receipts:  Carriers' 
Bills  of  Lading.— In  1886,^  1891,^  and  1909  Maws  were  passed 

1  Laws  1886,  p.  121.  »  Laws  1909,  p.  377. 

a  Laws  1891,  p.  272. 


PROTESTING  NEGOTIABLE  INSTRUMENTS.  289 

by  the  legislature  making  bills  of  lading,  warehouse  receipts 
and  carriers'  bills  of  lading  negotiable.  As  the  question 
might  very  naturally  arise,  it  is  well  to  consider  whether  they 
could  be  protested.  It  is  only  necessary  to  say  that  while  the 
Law  of  1891,  page  274,  section  5,*  says  that  ''all  checks  or  re- 
ceipts given  by  any  person  operating  any  warehouse,  commis- 
sion house,  forwarding  house,  mill,  wharf,  or  other  place  of 
storage,  for  any  grain,  flour,  pork,  beef,  wool  or  other  produce 
or  commodity,  stored  or  deposited,  and  all  bills  of  lading, 
and  transportation  receipts  of  every  kind,  are  hereby  declared 
negotiable,  and  may  be  transferred  by  indorsement  of  the 
party  to  whose  order  such  check  or  receipt  was  given  or  is- 
sued, and  such  indorsement  shall  be  deemedi  a  valid  transfer 
of  the  commodity  represented  by  such  receipt,  and  may  be 
made  either  in  blank  or  to  the  order  of  another";  and  while 
the  Law  of  1886,  page  121,  section  2,^  says  that  "all  the  title 
to  the  freight  which  the  first  holder  of  a  bill  of  lading  or 
warehouse  receipt  had,  when  he  received  it,  passes  to  every 
subsequent  indorsee  thereof  in  good  faith,  and  for  value,  in 
the  ordinary  course  of  business,  with  like  effect  and  in  like 
manner  as  in  the  case  of  a  bill  of  exchange,"  still  a  bill  of 
lading  is  not  negotiable  in  exactly  the  same  sense  as  a  bill 
of  exchange  or  a  promissory  note,  and  could  not  be  protested 
by  a  notary  in  the  manner  a  bill  of  exchange  or  promissory 
note  may  be. 

In  the  case  of  Shaw  v.  Merchants*  National  Bank  of  St. 
Louis,  101  U.  S.  557,  25  L.  ed.  892,  March,  1880,  Mr.  Justice 
Strong  of  the  supreme  court  of  the  United  States  handed 
down  the  following  opinion:  "Bills  of  lading  are  regarded 
as  so  much  cotton,  grain,  iron  or  other  articles  of  merchan- 
dise. The  merchandise  is  very  often  sold  or  pledged  by  the 
transfer  of  the  bills  which  cover  it.  They  are,  in  commerce, 
a  very  different  thin^  from  bills  of  exchange  and  promissory 
notes,  answering  a  different  purpose  and  performing  different 
functions.  It  cannot  be,  therefore,  that  the  statute  which 
made  them  negotiable  by  indorsement  and  delivery,  or  nego- 

4  1  H.  C,  §   2407;   Bal.  Code,  5  1  H.   C,  §   2408;   Bal.   Code, 

§  3598;  Rem,  &  Bal.  Code,  §  3377.       §  3599;  Bern,  &  Bal.  Code,  §  3378. 
19 


290  LAW  FOB  NOTARIES  PUBLIC. 

liable  in  the  same  manner  as  bills  of  exchange  and  promis- 
sory notes  are  negotiable,  intended  to  change  totally  their 
character,  put  them  in  all  respects  on  the  footing  of  instru- 
ments which  are  the  representatives  of  money,  and  charge  the 
negotiation  of  them  with  all  the  consequences  which  usually 
attend  or  follow  the  negotiation  of  bills  and  notes.  Some  of 
these  consequences  would  be  very  strange,  if  not  impossible; 
such  as  the  liability  of  indorsers,  the  .duty  of  demand  ad 
diem,  notice  of  nondelivery  by  carrier,  etc.,  or  the  loss  of 
the  owner's  property  by  the  fraudulent  assignment  of  a  thief. 
If  these  were  intended,  surely  the  statute  would  have  said 
something  more  than  merely  make  them  negotiable  by  in- 
dorsement." This  case  was  quoted  and  followed  in  the  case 
of  Yarwood  v.  Happy,  18  Wash.  248,  51  Pac.  461,  by  Mr. 
Chief  Justice  Scott,  in  1897,  and  in  the  case  of  Roy  and 
Eoy  V.  Northern  Pacific  R.  Co.,  42  Wash.  576,  85  Pac.  53, 
6  L.  R.  A.,  N.  S.,  302,  7  Ann.  Cas.  728,  by  Mr.  Justice  Crow, 

in  1906.« 

« 

§  176.  "Checks,  etc.,  Made  or  Drawn  by  Telegraph— Ef- 
fect of. — Checks,  due-bills,  promissory  notes,  bills  of  ex- 
change, and  all  orders  or  agreements  for  the  payment  or 
delivery  of  money,  or  other  thing  of  value,  may  be  made  or 
drawn  by  telegraph,  and  when  so  made  or  drawn,  shall  have 
the  same  force  and  effect  to  charge  the  maker,  drawer,  in- 
dorser,  or  acceptor  thereof,  and  shall  create  the  same  rights 
and  e(^ities  in  favor  of  the  payee,  drawer  [drawee],  in- 
dorse [indorsee],  acceptor,  holder,  or  bearer  thereof,  and 
shall  be  entitled  to  the  same  days  of  grace,  as  if  made  or 
drawn  and  delivered  in  writing;  but  it  shall  not  be  lawful 
for  any  person  other  than  the  person  or  drawer  thereof  to 
cause  any  such  instrument  to  be  sent  by  telegraph,  so  as  to 
charge  any  person  thereby,  except  as  hereinafter  in  the  next 
section  otherwise  provided.    Whenever  the   genuineness  or 

«  6  Cyc.  Law  &  Proc,  p.  424;  Central     Vermont    E.     Co.,     170 

Stollenwerck     v.     Thacher,     115  Mass.  129,  49  N.  E.  97;  Falken- 

Mass.   224;   Turner  v.  Israel,  64  berg  v.  Clark,  11  E.  I.  278. 
Ark.  244,  41  S.  W.  806;  Cox  v. 


PROTESTING  NEGOTIABLE  INSTEUMENTS.  291 

execution  of  any  such  instrument  received  by  telegraph  shall 
be  denied  on  oath,  by  or  on  behalf  of  the  person  sought  to 
be  charged  thereby,  it  shall  be  incumbent  upon  the  party 
claiming  under  or  alleging  the  same  to  prove  the  existence 
and  execution  of  the  original  writing  from  which  the  tele- 
graphic copy  or  duplicate  was  transmitted.  The  original 
message  shall  in  all  cases  be  preserved  in  the  telegraph  office 
from  which  the  same  is  sent ' ' :  Laws  1866,  p.  74,  §  14 ;  Code 
1881,  §  2355;  1  H.  C,  §  1555;  Bal.  Code,  §  4365;  Rem.  &  Bal. 
Code,  §  9310. 

§  177.  Instruments  Sent  by  Telegraph. — "Except  as 
hereinbefore  otherwise  provided,  any  instrument  in  writing, 
duly  certified,  under  his  hand  and  official  seal,  by  a  notary 
public,  ....  to  be  genuine,  within  the  personal  knowledge 
of  such  officer,  may  together  with  such  certificate,  be  sent 
by  telegraph,  and  the  telegraphic  copy  thereof  shall,  prima 
facie,  only  have  the  same  force,  effect,  and  validity,  in  all 
respects  whatsoever,  as  the  original,  and  the  burden  of  proof 
shall  rest  with  the  party  denying  the  genuineness  or  due  exe- 
cution of  the  original":  Laws  1866,  p.  75,  §  15;  Code  1881, 
§  2356;  1  H.  C,  §  1556;  Bal.  Code,  §  4366;  Rem.  &  Bal.  Code, 
§9311. 

§  178.    "Seal    and    Revenue    Stamp,  How  Described. — 

Whenever  any  document  to  be  sent  by  telegraph  bears  a  seal, 
either  private  or  official,  it  shall  not  be  necessary  for  the  oper- 
ator, in  sending  the  same,  to  telegraph  a  description  of  the 
seal,  or  any  words  or  device  thereon,  but  the  same  may  be 
expressed  in  the  telegraphic  copy  by  the  letters  'L.  S.'  or  by 
the  word  'Seal';  and  whenever  any  document  bears  a  rev- 
enue stamp,  it  shall  be  sufficient  to  express  the  same  in  the 
telegraphic  copy  by  the  word  'Stamp,'  without  any  other  or 
further  description  thereof":  Laws  1866,  p.  76,  §  18;  Code 
1881,  §  2359;  1  H.  C,  §  1559;  Bal.  Code,  §  4367;  Rem.  &  Bal. 
Code,  §  9312. 

§  179.  "Term  'Copy'  or  'Duplicate*  Construed.— The 
term  'telegraphic  copy'  or  'telegraphic  dupli'iate,'  whenever 


292  LAW  FOR  NOTARIES  PUBLIC. 

used  in  this  title,  shall  be  construed  to  mean  any  copy  of  a 
message  made  or  prepared  for  delivery  at  the  office  to  which 
said  message  may  have  been  sent  by  telegraph":  Laws  1866, 
p.  77,  §21;  Code  1881,  §2362;  1  H.  C,  §1560;  Bal.  Code, 
§  4368;  Rem.  &  Bal.  Code,  §  9313. 


BANKS  AND  NOTARIES.  293 


CHAPTER  XI. 

BANKS   AND   ifOTAEIES. 
5  180.    In  General. 
i  181.     Bank  Liable. 
§  182.    Banks  Liable  Only  for  Care  in  Selection  of  Notary. 

§  180.  In  General. — ^An  important  question  often  arises 
when  a  bill  of  exchange  or  promissory  note  is  sent  to  a  bank 
for  collection,  the  bank  turns  it  over  for  presentment  and 
protest  to  a  notary  public,  and  he  fails  to  discharge  his  duty, 
"When  the  owner  of  the  instrument  finds  that  he  is  denied  any 
action  against  indorsers  by  reason  of  the  negligence  of  the 
notary,  it  becomes  necessary  to  decide  whether  he  must  look 
to  the  bank  or  to  the  notary  for  his  damages.  The  courts  have 
divided  on  the  question  and  as  no  case  has  gone  to  the  su- 
preme court  in  this  state  we  cannot  do  better  than  to  state  the 
two  doctrines. 

§  181.  Bank  Liable. — In  the  states  of  New  Jersey,  New 
York,  South  Carolina,  Kansas  and  Indiana  the  courts  haye 
held  that  the  notary  is  the  agent  of  the  bank  and  that,  there- 
fore, the  default  of  the  notary  can  be  charged  up  to  the  bank. 
The  Indiana  case  was  one  of  an  express  company,  but  the 
principle  applied  is  the  same.  In  some  older  Louisiana  cases 
the  decisions  seem  to  place  them  in  this  group;  but  later 
cases  have  decided  the  bank  is  not  liable.^ 

§  182.    Bank  Liable  Only  for  Care  in  Selection  of  Notary. 

The    courts    of   the    United    States,    of    Georgia,    Maryland, 
Massachusetts,    Mississippi,    Ohio,    Pennsylvania,    Wisconsin, 

1  Davey  v.  Jones,  42  N.  J.  L.  30  Am.  Dec.  354;  Bank  of  Linds- 

28,   36   Am.    Eep.    505;    Allen   v.  borg  v.  Ober,  31  Kan.  599,  3  Pac. 

Merchants'  Bank,  22  Wend.    (N.  324;   Hitchcock  t.  Bank  of  Sus- 

Y.)  215,  34  Am.  Dec.  289;  Ayrault  pension   Bridge    (1901),   57    App. 

V.  Pacific  Bank,  47  N.  Y.  570,  7  Div.    458,    6S   N.    Y.    Supp.    234; 

Am.  Rep.  489;   Mead  v.  Engs,  5  Montillet  v.  United  States  Bank, 

Cow.   (N.  Y.)    303;   Thompson  v.  1  Mart.,  N.  S.  (La.),  365. 
State  Bank,   3   HUl    (S.   C),   77, 


294  LAW  FOR  NOTARIES  PUBLIC. 

Iowa,  Nebraska,  and  of  Louisiana  in  later  cases*  have  held 
that  a  notary  public  is  a  public  officer,  sworn  by  the  state  to 
discharge  his  duties  properly,  and,  therefore,  when  he  under- 
takes to  perform  any  official  duties  he  acts  as  a  person  having 
a  duty  to  the  public  and  that  duty  must  be  the  supreme  law 
of  his  conduct.  This  doctrine  was  explained  in  a  Georgia 
case'^  as  follows:  "The  notary  is  not  a  mere  agent  or  servant 
of  the  bank,  but  is  a  public  officer,  sworn  to  discharge  his 
duties  properly.  He  is  under  a  higher  control  than  that  of  a 
private  principal.  He  owes  duties  to  the  public  which  must 
be  the  supreme  law  of  his  conduct.  Consequently,  when  he 
acts  in  his  official  capacity,  the  bank  no  longer  has  control  over 
him,  and  cannot  direct  how  his  duties  shall  be  done.  If  he 
is  guilty  of  misfeasance  in  the  performance  of  an  official  act, 
the  bank  is  not  liable That  the  notary  is  also  an  em- 
ployee and  agent  of  the  bank  does  not  alter  the  case.  There 
is  still  a  sharp  dividing  line  between  his  duties  as  agent  and 
his  duties  as  a  public  officer.  When  his  public  service  comes 
into  play  his  private  service  is,  for  the  time,  suspended. ' '  If 
the  bank  has  exercised  due  care  in  selecting  a  reputable  no- 
tary, or  has  placed  the  note  or  other  instrument  in  the  hands 
of  its  regularly  employed  notary  to  perform  the  usual  notary 's 
duties,  the  bank  will  not  be  liable  for  a  default  of  the  notary. 
Although  New  York  does  not  follow  this  doctrine,  the  court 

1  Britton  v.  Niccolls,  104  U.  S.  629;    Manning   First    Nat.   Bank 

757,  26  L.  ed.  918;  May  v.  Jones,  v.  German  Bank,  107  Iowa,  545, 

88  Ga.  308,  30  Am.  St.  Rep.  154,  70   Am.  St.  Rep.  216,  78  N.  W. 

14   S.  E.   552,   15  L.   R.  A.   637;  195,   44   L.   R.   A.    133;    Baldwin 

Citizens'  Bank  t.  Howell,  8  Md.  v.  State  Bank,  1  La.  Ann.  13,  45 

530,    63    Am.    Dec.    714;    Warren  Am.  Dec.  72;   Hyde  v.  Planters' 

Bank  v.  Suffolk  Bank,  10  Cush.  Bank,   17   La.   560,   36   Am.   Dec. 

(Mass.)  582;  Tiernan  v.  Commer-  621;  Frazier  v.  New  Orleans  Gas 

cial   Bank,   7   How.    (Miss.)    648,  Light     Co.,     2     Rob.    (La.)    296; 

48    Am.     Dec.    83;     Agricultural  First  Nat.  Bank  v.  German  Bank 

Bank  v.  Com.  Bank,  7  Smedes  &  of  Carroll  Co.,  107  Iowa,  543,  70 

M.   (Miss.)    592;   Bowling  v.  Ar-  Am.  St.  Rep.  216,  78  N.  W.  195, 

thur,  34  Miss.  41;  Gallipolis  First  44   L.   R.   A.     133;     Williams    v. 

Nat.  Bank  v.  Butler,  41  Ohio  St.  Parks,    63    Neb.    747,    89    N.    W. 

519,  52   Am.   Rep.  94;   Bellemire  395,  56  L.  R.  A.  759. 
r.  United  States  Bank,  4  Whart.  2  May  v.  Jones,  88  Ga.  308,  30 

(Pa.),  105,  33  Am.  Dec.  46;  Stacy  Am.  St.  Rep.   154,  14  S.  E.  552, 

V.   Dane   County   Bank,   12   Wis.  15  L.  R.  A.  637. 


BANKS  AND  NOTARIES.  295 

m  Smedes  v.  Utica  Bank,  20  Johns.  372,  questioned  whether, 
if  the  bank  selected  a  competent  notary,  it  would  be  liable  for 
his  neglect,  since  notaries  are  oflBcers  appointed  by  the  state, 
and  confidence  is  placed  in  them  by  the  government.  But  it 
has  been  held  in  some  cases  that  if  the  bank  employs  a  notary 
by  the  year,  and  takes  from  him  a  bond  for  the  faithful  dis- 
charge of  his  duties,  he  is  to  be  regarded  as  an  agent  of  the 
bank,  and  the  bank  will  be  liable  for  his  negligence  or  de- 
fault.' 

8  Bird   V.   Bank,   93   U.   S.   96,  Bank,  36  Neb.  744,  55  N.  W.  239; 

23  L.  ed.  818;  Ayrault  v.  Bank,  Thompson  v.  State  Bank,  3  Hill 

47  N.  Y.  570,  7   Am.  Eep.  489;  (S.   C),   77,  30    Am.    Dec.    354; 

Mechem  on  Agency,  §  514;  Ger-  Bank   of  Lindsberg  v.   Ober,   31 

hardt  v.  Boatman's  Sav.  Inst.,  38  Kan.   599,   3  Pac.   324;    Allen  v. 

Mo.  601,  90  Am.  Dec.  407;  Wood  Merchants'  Bank,  22  Wend.  215, 

Birer  Bank  t.  Omaha  Eirst  Nat.  34  Am.  Dec.  289. 


296  LAW  FOR  NOTARIES  PUBLIC. 


CHAPTER  XII. 

NOTAEIES  AND  INSUEANCE. 

§  183.  Standard  Fire  Policy. 

§  184.  Proof  of  Loss  to  be  Sworn  to. 

§  185.  Certificate  by  Nearest  Notary. 

S  186.  When  Disqualified  to  Make  Certificate. 

S  187.  Notary's  Certificate. 

§  183.  Standard  Fire  Policy. — In  the  standard  fire  insur- 
ance  policy  now  so  commonly  used  throughout  the  states  are 
the  following  words,  being  lines  67  to  80  inclusive : 

**If  fire  occur  the  insured  shall  give  immediate  notice  of 
any  loss  thereby  in  writing  to  this  company,  [a]  protect  the 
property  from  further  damage,  forthwith  separate  the  dam- 
aged and  undamaged  personal  property,  put  it  in  the  best 
possible  order,  make  a  complete  inventory  of  the  same,  stat- 
ing the  quantity  and  cost  of  each  article  and  the  amount 
claimed  thereon ;  and,  within  sixty  days  after  the  fire,  unless 
such  time  is  extended  in  writing  by  this  company,  shall  ren- 
der a  statement  to  this  company,  signed  and  sworn  to  by  said 
insured,  stating  the  knowledge  and  belief  of  the  insured  as  to 
the  time  and  origin  of  the  fire ;  the  interest  of  the  insured  and 
of  all  others  in  the  property;  the  cash  value  of  each  item 
thereof  and  the  amount  of  loss  thereon;  all  encumbrances 
thereon ;  all  other  insurance,  whether  valid  or  not,  covering 
any  of  said  property;  and  a  copy  of  all  the  descriptions  and 
schedules  in  all  policies ;  any  changes  in  the  title,  use,  occupa- 
tion, location,  possession,  or  exposures  of  said  property  since 
the  issuing  of  this  policy;  by  whom  and  for  what  purpose 
any  building  herein  described  and  the  several  parts  thereof 
were  occupied  at  the  time  of  fire;  and  shall  fiirnish,  if  re- 
quired, verified  plans  and  specifications  of  any  building,  fix- 
tur(es,  or  machinery  destroyed  or  damaged ;  and  shall  also,  if 
required,  furnish  a  certificate  of  the  magistrate  or  notary  pub- 
lic (not  interested  in  the  claim  as  a  creditor  or  otherwise,  nor 
related  to  the  insured)  living  nearest  the  place  of  fire,  stating 
that  he  has  examined  the  circumstances  and  believes  the  in- 


NOTARIES  AND  INSURANCE.  297 

sured  has  honestly  sustained  loss  to  the  amount  that  such 
magistrate  or  notary  public  shall  certify. ' ' 

[a]  FORM  LXXIV. 

Notice  to  a  Fire  Insurance  Company  of  Claim  for  Loss  or  Damage  by 

Fire. 

To  the  Georgetown  Insurance  Company  of  New  York  City: 

I  hereby  give  you  notice  that  on  the  8th  day  of  December,  the  bouse 
No.  SS6  Fairview  Avenue,  in  the  town  of  Benton,  Washington,  which 
is  insured  by  you  under  Policy  No.  567,431,  was  totally  destroyed  by 
fire,  and  I  claim  payment  of  the  sum  of  one  thousand  dollars,  being  the 
amount  required  to  make  g^od  the  lose  covered  by  said  policy. 

BICHABD  BOB. 
Benton,  Washington,  December  9,  1910. 

[The  words  in  italics  must  be  changed  to  suit  the  case.] 

§  184.  Proof  of  Loss  to  be  Sworn  to. — ^From  the  previ- 
ous section  we  find  that  the  sworn  proof  which  must  be  sent 
to  the  company  within  sixty  (60)  days  from  the  date  of  the 
fire  must  set  out  the  following:  (1)  The  knowledge  and  be- 
lief of  the  insured  as  to  the  time  and  origin  of  the  fire ;  (2) 
the  interest  of  the  insured  and  of  all  others  in  the  property; 
(3)  the  cash  value  of  each  item  thereof  and  the  amount  of 
loss  thereon;  (4)  all  encumbrances  thereon;  (5)  all  other 
insurance,  whether  valid  or  not,  covering  any  of  said  prop- 
erty; (6)  a  copy  of  all  the  descriptions  and  schedules  in  all 
policies;  (7)  any  changes  in  the  title,  use,  occupation,  loca- 
tion, possession,  or  exposures  of  said  property  since  the  issu- 
ing of  this  policy;  (8)  by  whom  and  for  what  purpose  any 
building  herein  described  and  the  several  parts  thereof  were 
occupied  at  the  time  of  fire. 

Such  proof  is  sufficient  unless  the  company  demands  plans 
or  specifications,  when  the  insured  must  send  either  the  orig- 
inal or  a  copy  of  the  plans  and  specifications  of  any  building, 
fixtures,  or  machinery  destroyed  or  damaged,  with  a  sworn 
statement  attached  that  they  are  the  originals  or  exact 
copies. 


298  I/AW  FOR  NOTARIES  PUBLIC. 

FOEM  LXXV. 

Proof  of  Loss. 
State  of  Washington,  ' 

County  of  King, — ss. 

Be  it  known,  that  on  this  10th  day  of  December,  1910,  before  me, 
John  Doe,  a  notary  public,  duly  appointed,  commissioned  and  sworn, 
and  residing  in  the  county  and  state  aforesaid,  personally  appeared 
Richard  Eoe,  who,  being  duly  sworn,  says  that  the  following  statement 
and  the  papers  therein  referred  to  and  signed  with  his  own  hand  con- 
tain a  particular,  just  and  true  account  of  his  loss  in  the  words  and 
figures  following,  to  wit: 

I.  That  on  the  5th  day  of  January,  1910,  the  Georgetown  Insurance 
Company,  by  their  policy  of  insurance,  numbered  567,431,  did  insure 
the  party  herein  and  therein  named  against  loss  or  damage  by  fire  to 
the  amount  of  one  thousand  dollars  on  a  certain  two-story  frame  build- 
ing, liuown  as  number  S36  Fairview  Avenue,  Benton,  Washington,  for 
the  term  of  three  years  from  the  5th  day  of  January,  1909,  to  the  5th 
day  of  January,  191S,  at  noon. 

II.  That  in  addition  to  the  amount  covered  by  said  policy  of  said 
company,  there  was  other  insurance  made  thereon  to  the  amount  of  one 
thousand  dollars,  as  specified  in  the  following  schedule,  besides  which 
there  was  no  other  insurance  thereon: 

Policy  in  the  Western  Insurance  Company  dated  January  6,  1909, 
for  three  years,  in  amount  one  thousand  dollars,  and  covering  the  same 
property,  viz.:  one  two-story  frame  building  known  as  number  S36  Fair- 
view  Avenue,  Benton,  Washington. 

m.  That  the  property  insured  belonged  to  Bichard  Boe  and  was 
encumbered  with  no  mortgages  or  otherwise;  nor  has  there  been  ati,y 
change  in  the  title,  use,  occupation,  location,  possession  or  exposures 
thereof  since  the  said  policy  was  issued. 

TV.  That  the  building  insured  or  containing  the  property  destroyed 
or  damaged  was  occupied  at  the  time  of  fire  in  its  several  parts  by  the 
parties  hereinafter  named,  and  for  the  following  purposes,  to  wit: 
John  Stiles  occupied  the  entire  buUding  as  his  home. 

V.  That  the  actual  cash  value  of  the  property  bo  insured  amounted 
to  the  sum  of  three  thousand  dollars  at  the  time  immediately  preceding 
the  fire,  as  set  forth  in  the  following  schedule: 

A  two-story  frame  dwelling,  with  porch  across  the  entire  front.  Size 
40x50 ;  four  rooms  on  first  floor;  five  rooms  and  bath  on  second  floor; 
finished  in  hard  woods,  ash  and  cherry,  on  first  floor;  mantel  in  living- 
room;  charkdeliers  in  living-room  and  dining-room;  built-in  book-cases 
in  living-room. 

That  on  the  8th  day  December,  1910,  a  fire  occurred  by  which  the 
property  insured  was  injured  or  destroyed  to  the  amount  of  two  thoti- 


NOTARIES  AND  INSURANCE.  299 

sand  dollars,  as  set  forth  in  the  following  schedule,  which  the  deponent 
declares  to  be  a  just,  true  and  faithful  account  of  his  loss  as  far  as  he 
has  been  able  to  ascertain  the  same: 

(Here  should  be  scheduled  in  full  all  property  damaged  or  destroyed, 
showing  the  cash  value  of  each  item  thereof  and  the  amount  of  loss 
thereon.) 

And  the  insured  claims  of  the  Georgetown  Insurance  Company  the 
sum  of  one  thousand  dollars. 

(If  the  policy  contains  any  subdivisions,  a  statement  should  be  placed 
here  of  the  amount  claimed  under  each  subdivision.) 

VI.  That  the  fire  originated  from  the  lace  curtains  in  the  living- 
room  being  blown  by  the  toind  into  the  gas  flame  about  9 :30  o*dock  on 
the  night  of  the  8th  day  of  December,  1910.  That  the  family  were 
away  from  home  at  the  time,  and  the  gas  was  lighted  and  window' 
opened  by  one  of  the  maids.  And  the  said  deponent  further  declares 
that  the  said  fire  did  not  originate  by  any  act,  design  or  procurement 
on  his  part,  or  in  consequence  of  any  fraud  or  evil  practice  done  or 
suffered  by  him,  and  that  nothing  has  been  done  by  or  with  his  privity 
or  consent  to  violate  the  conditions  of  insurance  or  render  void  the 
policy  aforesaid. 

BICHABD  SOE. 

Sworn  and  subscribed  to  before  me  this  10th  day  of  December,  1910. 
[Notary's  Seal]  JOHN  DOE, 

Notary  Public  in  and  for  the  State  of  Washington,  Eesiding  in  Seattle. 

[The  words  in  italics  must  be  changed  to  suit  the  ease.] 

§  185.  Certificate  by  Nearest  Notary. — ^The  proof  of  loss 
sworn  to  before  a  notary  as  considered  in  the  previous  sec- 
tion need  not  be  written  by  a  notary ;  it  may  be  filled  out  by 
the  insured  or  by  anyone  else  so  long  as  it  is  sworn  to  by 
the  insured  before  a  notary  or  some  other  officer  authorized 
to  administer  oaths.  But  the  last  part  of  the  policy  as  set 
out  in  section  183  puts  a  new  power  in  the  hands  of  notaries. 
The  policy  says,  lines  77-80 : 

''And  shall  also,  if  required,  furnish  a  certificate  of  the 
magistrate  or  notary  public  (not  interested  in  the  claim  as  a 
creditor  or  otherwise,  nor  related  to  the  insured)  living 
nearest  the  place  of  fire,  stating  that  he  has  examined  the 
circumstances  and  believes  the  insured  has  honestly  sus- 
tained loss  to  the  amount  that  such  magistrate  or  notary 
public  shall  certify." 


300  LAW  FOR  NOTARIES  PUBLIC. 

This  portion  of  the  standard  policy  has  been  passed  on 
by  courts  in  a  number  of  cases  throughout  the  United 
States.  They  have  held  that  "the  certificate  of  a  magistrate 
or  notary"  is  not  part  of  the  proofs  of  loss^  and  need  not 
be  furnished  unless  it  is  specifically  asked  for  by  the  com- 
pany .^  [a]  But  they  have  also  held  that  the  company  has 
a  perfect  right  to  demand  such  a  certificate  where  the  policy 
contains  the  above  clause.^  It  then  becomes  necessary  for 
the  insured  to  decide  who  the  "nearest"  notary  or  magistrate 
is,  keeping  in  mind  that  he  must  be  one  "living  nearest" 
and  not  one  whose  "office  is  nearest,"  and  also  that  he  must 
not  be  "interested  in  the  claim  as  a  creditor  or  otherwise, 
nor  related  to  the  insured." 

The  courts  have  divided  on  the  question  whether  it  is  ab- 
solutely necessary  for  the  magistrate  or  notary  "living 
nearest"  to  make  the  certificate.  Some  courts  have  held 
that  it  is  a  condition  precedent  which  must  be  strictly  com- 
plied with,^  and  if  the  insured  cannot  get  such  certificate 
from  the  "nearest"  notary  or  magistrate,  notwithstanding 
repeated  efforts,  he  cannot  recover.^  Other  courts  have 
held  that  such  a  construction  is  too  strict,  and  that  a  clause 

1  Merchants'  Ins.  Co.  v.  Gibbs,  *  ^ire  Ins.  Co.  v.  Felrath,  77 
56  N.  J.  L.  679,  44  Am.  St.  Eep.  ^la.  194,  54  Am.  Eep.  58;  John- 
413,  29  Atl.  485;  Jones  v.  How-  son  v.  Phenix  Ins.  Co.,  112  Mass. 
ard  Ins.  Co.,  117  N.  Y.  103,  22  49,  17  Am.  Eep.  65;  Dolliver  v. 
N.  E.  578.  ^*-  Joseph  F.  &  M.  Ins.  Co.,  131 

Mass.    39;    Eoumage   v.   Mechan- 

2  Burnett  v.  Amer.  Ins.  Co.,  68  .^^,  ^^^  j^^  ^o.,  13  N.  J.  L.  110; 
Mo.  App.  343;  McNally  v.  Phenix  Leadbetter  v.  Etna  Ins.  Co.,  13 
Ins.  Co.,  137  N.  Y.  389,  33  N.  E.  ^^^  265,  29  Am.  Dec.  505;  13  Am. 
475;  Jones  v.  Howard  Ins.  Co.,  ^  ^  ^  ^^  Law,  2d  ed.,  p. 
117  N.  Y.  103,  22  K  E.  578.                 353.   p^^^^^^^  j^^    ^^^  ^    p^^J. 

3  Fire  Ins.   Co.   v.   Felrath,   77      son,  5  Ind.  417. 

Ala.  194,  54  Am.  Eep.  58;  John-  6  Walker  v.  Phenix  Ins.  Co.,  62 

son  V.  Phenix  Ins.  Co.,  112  Mass.  Mo.  App.  209;  Columbian  Ins.  Co. 

49,    17    Am.    Eep.    65;    People's  v.  Lawrence,  2  Pet.   (U.  S.)    25, 

Bank  v.  Aetna  Ins.  Co.,  74  Fed.  7  L.  ed.  335,  10  Pet,  (U.  S.)   507,  9 

507,  20  C,  C.  A.  630;  Great  West.  L.  ed.  513;  Leadbetter  v.  Etna  Ins. 

Ins.  Co.  V.  Staaden,  26  111.  360,  19  Co.,  13  Me.  265,  29  Am.  Dec.  505; 

Cyc.  Law  &  Proc,  p.  852;  13  Am.  Lane  v.  St.  Paul  F.  &  M.  Ins.  Co., 

&  Eng.  Ency.  of  Law,  Sd  ed.,  p.  50  Minn.  227,  52  N.  W.  649,  17  L. 

352.  E.  A.  197. 


NOTARIES  AND  INSURANCE.  301 

of  that  kind  must  be  interpreted  reasonably.®  They  hold 
that  if  the  "nearest"  notary  or  magistrate  refuses  to  give 
such  a  certificate,  one  by  the  next  nearest  will  be  accepted^ 
And  Kentucky  courts  have  held  that  the  whole  clause  is  in- 
valid.® 

The  Washington  courts  have  not  been  called  upon  to  con- 
strue this  clause  of  the  standard  policy  as  yet;  it  would 
be  well,  therefore,  for  the  insured  to  follow  the  clause  as 
closely  as  he  is  able  to.  In  earlier  policies  the  words 
"notary  public"  did  not  appear,  and  it  was  held  in  Cayon 
V.  Dwelling  House  Insurance  Company,  a  Wisconsin  case,' 
that  a  notary  was  not  a  "magistrate."  In  deciding  who 
the  "nearest"  notary  or  magistrate  is,  precise  measure- 
ments as  to  a  few  feet  will  not  be  indulged  in,  where  it  can 
be  shown  that  the  insured  attempted  to  carry  out  the  spirit 
of  the  policy.^'* 

From  the  above  it  will  be  seen  that  the  insurance  com- 
panies have  conferred  on  the  notary  a  power  which  he  did 
not  enjoy  at  common  law  and  which  has  never  been  dele- 
gated to  him  by  any  statutes.  He  becomes  in  a  way  an 
officer  of  the  insurance  companies.  The  question  as  to  when 
he  is  disqualified  is  taken  up  in  the  next  section. 

[a]  In  Egan  v.  Merchants'  Fire  Assn.,  40  Wash.  513,  82  Pac.  898, 
November,   1905,   Mr.   Justice   Hadley   said:    "Appellant   contends   that 

8  Smith  V.  Home  Ins.   Co.,  47  Norris,   100  Ky.  29,   66  Am.   St. 

nun     (N.    Y.),    39;    Aetna    Ins.  Rep.  324,  37  S.  W.  267. 

Co.    V.   Miers,   5   Sneed    (Tenn.),  »  Cayon  v.  Dwelling  House  Ins. 

139;  Lang  v.  Eagle  Fire  Ins.  Co.,  Co.,  68  Wis.  510,  32  N.  W.  540. 

12  N.  Y.  App.  Div.  39,  42  N.  Y.  ^^  Williams    v.     Niagara     Fire 

Supp.  539;  Kelly  v.  Sun  Fire  Of-  I°8.   Co.,  50  Iowa,  561;   Agricul- 

fice,  141  Pa.  10,  23  Am.  St.  Kep.  tural  Ins.  Co.  v.  Bemiller,  70  Md. 

254,  21  Atl.  447;  19  Cyc.  Law  &  ^00,   17  Atl.  380;  German-Ameri- 

Proc,  p.  853;  Kelly  v.  Sun  Fire  <^a°  I°8.  Co.  v.  Etherton,  25  Neb. 

Office,    141    Pa.    10,    23    Am.   St.  505,  41  N.  W.    406;    Osewalt    v. 

Eep.  254,  21  Atl.  447.  Hartford  Fire  Ins.   Co.,    175  Pa. 

427,  34  Atl.  735;  Peoria  Marine  & 

T  Lang  V.  Eagle  F.  Co.,  12  N.  ^.^^^  j^^    ^o.  v.  WhitehiU,  25  111. 

Y.  App.  Div.  39,  42  N.  Y.  Supp.  ^gg.   American  Cent.  Ins.  Co.  v. 

539;   Walker  v.   Phenix  Ins.   Co.,  R^thchild,  82  111.  166;  Daniels  r. 

62  Mo.  App.  209.  Equitable  Fire  Ins.  Co.,  50  Conn. 

8  German  American  Ins.  Co.  v.  551. 


302  LAW  FOB  NOTARIES  PUBLIC. 

the  certificate  tvas  a  necessary  part  of  the  proofs  of  loss.  Under  the 
terms  of  the  policy  we  do  not  think  it  was.  The  policy  provides  abso- 
lutely that  the  assured  shall  furnish  certain  specified  information  con- 
cerning the  loss.  The  certificate  of  the  magistrate  or  notary  is  to  be 
furnished  only  'if  required.'  The  assured  gave  full  information  con- 
cerning the  loss  strictly  as  provided  by  the  policy.  He  could  not  know 
that  the  magistrate's  certificate  would  be  'required,'  as  that  was  a 
matter  that  depended  entirely  upon  the  will  of  the  insurer.  The  in- 
sured was  imder  no  obligation  to  furnish  it  unless  it  was  demanded. 
....  But  the  mere  fact  that  it  was  furnished  did  not  make  it  a  part 
of  the  proof  of  loss." 

§  186.  When  Disqualified  to  Make  Certificate. — In  the 
last  section  we  learned  that  the  notary  must  not  be  "inter- 
ested in  the  claim  as  a  creditor  or  otherwise,  nor  related  to 
the  insured. "  In  one  case  it  was  held  the  fact  that  the  magis- 
trate was  a  general  creditor  only  of  the  insured  would  not 
disqualify  him.^  But  in  a  Wisconsin  case  it  was  held  that 
a  magistrate  was  disqualified  whose  house  was  not  insured 
and  was  destroyed  by  fire  communicated  from  the  property 
of  the  insured,  and  before  whom  complaint  had  been  en- 
tered, charging  the  insured  with  setting  the  fire.^  And  it 
has  been  held  that  a  notary  who  has  married  the  first  cousin 
of  the  insured  is  **  related -to"  him,  within  the  meaning  of 
the  policy,^ 

§  187.  Notary's  Certificate. — The  certificate  should  fol- 
low the  words  of  the  policy  and  clearly  set  forth  the  facts 
the  insurance  company  desires  to  know.  The  following  is 
a  form  which,  of  course,  may  be  varied  to  suit  the  occasion : 

FOEM  LXXVL 
State  of  Washington, 
County  of  King, — ss.* 

This  is  to  certify  that  I,  John  Doe,  am  a  notary  public  of  the  state 
of  Washington,  having  been  duly  appointed,  commissioned  and  sworn; 
that  I  live  at  100  Fairvieio  Avenue,  Eenton,  Washington,  and  did  on  the 

1  DoUiver  v.  St.  Joseph  F.  &  ▼.  Aetna  Ins.  Co.,  74  Fed.  507,  20 
M.  Ins.  Co.,  131  Mass.  39.  C.  C.  A.  630. 

2  Wright  V.  Hartford  Ins.  Co.,  4  Where  the  policy  required 
36  Wis.  522.  that   the   proof   should   be  sworn 

8  People's  Bank  of   Greenville      to  before  the  notary  public  near- 


NOTARIES  AND  INSURANCE.  303 

8th  day  of  December,  1910,  live  at  that  address;  that  I  am  not  per- 
sonalhj  acquainted  with  Bichard  Boe,  who  owned  the  two-story  frame 
house,  situated  at  3S6  Fairview  Avenue,  which  was  burned  on  the  night 
of  the  8th  day  of  December,  1910,  and  am  in  no  way  related  to  him; 
that  I  am  interested  in  no  manner,  as  a  creditor  or  otherwise,  in  the 
claim  he  has  against  the  Georgetown  Insurance  Company;  that  I  believe 
I  live  nearer  to  the  aforesaid  house  that  was  burned  than  any  magis- 
trate  or  other  notary; 

And  I  further  certify  that  I  have  examined  the  circumstances  of  the 
aforesaid  fire  and  believe  that  the  insured,  Bichard  Boe,  has  honestly 
sustained  loss  in  the  said  fire,  and  that  the  said  loss  will  amount  to  two 
thousand  dollars. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  afl&xed  my  offi- 
cial seal  this  ISth  day  of  December,  nineteen  hundred  and  ten. 

[Notary's  Seal]  JOHN  DOE. 

[The  words  in  italics  must  be  changed  to  suit  the  case.] 

est  the  place  of  fire,  a  certificate  Y.  Supp.  820,  ©0  N.  Y.  Supp.  1143, 

with  no   venue  is  fatally  defec-  affirmed  60  N.  E.  1115,  167  N.  Y. 

tire:    McManus    v.    West    Assur-  602. 
ance  Co.,  43  App.  Div.  550,  48  N. 


304  LAW  FOR  NOTARIES  PUBLIC. 


CHAPTER  XIII 

COMMISSIONERS  OF  DEEDS. 

S  188.  Origin  and  Purpose. 

§  189.  Laws  Creating  the  Office  of  Commissioner  of  Deeds. 

§  190.  Appointment:  Term  of  Office:  Powers. 

§  191.  Depositions  may  be  Taken  by  Commissionera  of  Deeds. 

§  192.  The  Oath. 

§  193.  Fee:  Seal. 

§  188.  Origin  and  Purpose.— By  the  laws  of  1854*  the 
power  was  given  the  governor  to  appoint  in  the  different 
states  and  territories  persons  to  act  as  commissioners  of 
deeds  for  the  territory  of  Washington.  His  powers  were 
"to  administer  oaths  and  to  take  depositions  and  affidavits 
to  be  used  in  this  territory ;  and  also  to  take  the  acknowledg- 
ment of  any  deed  or  other  instrument  to  be  used  or  recorded 
in  this  territory." 

§  189.  Laws  Creating  the  Office  of  Commissioner  of 
Deeds. — The  first  law  was  passed  in  1854  on  the  13th  of 
March,  and  is  found  on  page  448  of  the  laws  of  that  year. 
This  was  followed  by  the  Law  of  1863,  page  500;  the  Law 
of  1871,  page  91;  the  Law  of  1873,  page  477;  the  Code  of 
1881,  section  2626;  and  the  Law  of  1890,  page  90,  which  is 
the  latest  statute  and  which  varies  but  little  from  the  first 
law  of  1854.     See  §  190,  note ^[ a]. 

§  190.  Appointment:  Term  of  Office:  Powers. — Commis- 
sioners of  deeds  are  appointed  by  the  governor  under  the 
seal  of  the  state  of  Washington.  He  may  appoint  as  many 
as  he  sees  fit  for  the  different  states  and  territories,  to  hold 
office  for  a  term  of  four  years.  They  have  power  to  ad- 
minister oaths,  and  to  take  depositions  and  affidavits  to  be 
used  in  this  state  and  also  to  take  the  acknowledgment  of 
any  deed  or  other  instrument  to  be  used  or  recorded  in  the 
state.    As  is  seen,  the  commissioner  of  deeds  has  the  same 

1  Laws  1854,  p.  448. 


COMMISSIONERS  OP  DEEDS.  305 

powers  as  the  notary,  with  the  exception  that  he  cannot 
protest  negotiable  paper,  [a]  As  to  statutes  and  cases  gov- 
erning the  exercise  of  his  functions  as  a  commissioner  of 
deeds,  see  the  same  subject  in  this  book  as  applied  to 
notaries. 

[a]  "The  governor  may  appoint  in  each  of  the  United  States,  and 
the  territories  thereof,  one  or  more  commissioners,  under  the  seal  of 
this  state,  to  continue  in  oflBce  for  the  term  of  four  years,  who  shall 
have  power  to  administer  oaths,  and  to  take  depositions  and  affidavits, 
to  be  used  in  this  state,  and  also  to  take  the  acknowledgment  of  any 
deed  or  other  instrument  to  be  used  or  recorded  in  the  state":  Laws 
1890,  p.  91,  §  1;  1  H.  C,  §  339;  Bal.  Code,  §  260;  Eem.  &  Bal.  Code, 
§  8305. 

§  191.  Depositions  may  be  Taken  by  Oonunissioners  of 
Deeds. — "Depositions  may  be  taken  out  of  the  state  by  a 
judge,  justice,  or  chancellor  or  clerk  of  any  court  of  record, 
a  justice  of  the  peace,  notary  public,  mayor,  or  chief  magis- 
trate of  any  city  or  town,  or  any  person  authorized  by  a 
special  commission  from  any  court  [of  record]  of  this 
state":  Laws  1877,  p.  90,  §414;  Code  1881,  §412;  2  H.  C, 
§  1671;  Bal.  Code,  §  6022;  Rem.  &  Bal.  Code,  §  1239. 

§  192.  The  Oath. — Before  exercising  any  of  the  func- 
tions of  his  office  as  commissioner  of  deeds  an  applicant 
must  take  and  subscribe  an  oath  that  he  will  faithfully  dis- 
charge all  duties  connected  with  the  office.  This  oath  must 
be  filed  in  the  office  of  the  secretary  of  state  at  Olympia. 
The  officer  before  whom  such  oath  is  taken  must  be  either 
a  clerk  of  a  court  of  record,  or  some  other  officer  having  an 
official  seal  who  is  authorized  to  administer  oaths  in  the 
state  or  territory  for  which  such  commissioner  is  ap- 
pointed, [a] 

[a]  See  §193,  note  [a], 

§  193.     Fee:   Seal. — ^Before  exercising  any  of  the  func- 
tions of  his  office  an  applicant    must  pay  into  the    state 
treasury  the  sum  of  five  dollars;  and  he  must  also  provide 
himself  with  an  official  seal  upon  which  must  be  engraved 
20 


306  LAW  FOR  NOTARIES  PUBLIC. 

the  following :  (1)  Name  of  commissioner;  (2)  Words,  "Com- 
missioner of  Deeds  for  the  State  of  Washington";  (3)  Name 
of  state  or  territory  for  which  he  is  commissioned  (name  of 
state  or  territory  in  which  he  lives) ;  (4)  Date  of  expiration 
of  his  commission,  [a] 

[a]  "Before  any  commissioner  appointed  as  aforesaid  shall  proceed 
to  perform  any  of  the  duties  of  his  office,  he  shall  take  and  subscribe 
an  oath  before  any  clerk  of  a  court  of  record,  or  other  officer  having 
an  official  seal  authorized  to  administer  oaths  in  the  state  or  territory 
for  which  such  commissioner  is  appointed,  that  he  will  faithfully  dis- 
charge all  duties  of  his  office,  a  certificate  of  which  shall  be  filed  in 
the  office  of  the  secretary  of  state,  and  shall  provide  and  keep  an  offi- 
cial seal,  upon  which  must  be  engraved  his  name  and  the  words  'Com- 
missioner of  Deeds  for  the  State  of  Washington,'  and  the  name  of  the 
state  or  territory  for  which  he  is  commissioned,  with  the  date  at  which 
his  commission  expires,  and  shall  pay  into  the  state  treasury  the  sum 
of  five  dollars  for  the  special  state  library  fund" :  Laws  1890,  p.  90,  §  3; 
1  H.  C,  §  340;  BaL  Code,  §  261;  Rem.  &  Bal.  Code,  §  8306. 


WILLS.  307 


CHAPTER  XIV. 

WILLa 

I  194.  Purpose  of  Chapter. 

!  195,  Who  may  Make. 

§  196.  Who  may  Take  by  Will. 

§  197.  What  may  be  Disposed  of  by  Will. 

§  198.  Devises,  Legacies  and  Gifts  to  Witnesses  Void,  When. 

§  199.  How  Will  is  Made. 

§  20O.  Form  of  WilL 

§  194.  Purpose  of  Chapter. — This  chapter  is  added  be- 
cause a  notary  is  many  times  called  upon  hurriedly  to  write 
a  person's  will  when  no  attorney  can  be  reached,  and  it  is 
thought  this  chapter  may  be  of  assistance  to  him.  If  pos- 
sible, the  person  desiring  to  make  a  will  should  consult  a 
lawyer  and  talk  over  the  disposition  of  his  property.  It 
is  an  act  that  should  be  done  with  great  consideration.  It 
is  impossible  to  go  into  the  subject  in  this  book. 

§  195.  Who  may  Make. — "Every  person  who  shall  have 
attained  the  age  of  majority,  of  sound  mind,  may  by  last 
will  devise  all  his  or  her  estate,  real  and  personal":  Bal. 
Code,  §4594;  1  H.  C,  §  1458;  Rem.  &  Bal.  Code,  §1319. 
"Males  shall  be  deemed  of  full  and  legal  age  when  they  shall 
be  twenty-one  years  old,  and  females  shall  be  deemed  of  full 
and  legal  age  when  they  shall  be  eighteen  years  old,  or  at 
any  age  under  eighteen,  when,  with  the  consent  of  the 
parent  or  guardian,  or  other  person  under  whose  care  or 
government  they  may  be,  they  shall  have  been  lawfully 
married":  2  H.  C,  §1134;  Bal.  Code,  §6401;  Rem.  &  Bal. 
Code,  §  1631. 

§  196.  Who  may  Take  by  Will. — ^Any  person  may  take 
property  by  will. 

§  197.  What  may  be  Disposed  of  by  Will. — "Every  per- 
son who  shall  have  attained  the  age  of  majority,  of  sound 
mind,  may  by  last  will  devise  all  his  or  her  estate,  real  and 


308  LAW  FOR  NOTARIES  PUBLIC. 

personal":  Bal.  Code,  §4594;  1  H.  C,  §1458;  Rem.  &  Bal. 
Code,  §  1319.  "Upon  the  death  of  either  husband  or  wife, 
one-half  of  the  community  property  shall  go  to  the  survivor, 
subject  to  the  community  debts,  and  the  other  half  shall  be 
subject  to  the  testamentary  disposition  of  the  deceased  hus- 
band or  wife,  subject  also  to  the  community  debts":  1  H.  C, 
§  1481 ;  Bal.  Code,  §  4621 ;  Rem.  &  Bal.  Code,  §  1342. 

§  198.  Devises,  Legacies  and  Gifts  to  Witnesses  Void, 
When. — "All  beneficial  devises,  legacies,  and  gifts  what- 
ever, made  or  given'  in  any  will  to  a  subscribing  witness 
thereto,  shall  be  void  unless  there  are  two  other  competent 
witnesses  to  the  same;  but  a  mere  charge  on  the  estate  of 
the  testator  for  the  payment  of  debts  shall  not  prevent  his 
creditors  from  being  competent  witnesses  to  the  will.  If 
such  witness,  to  whom  anj'-  beneficial  devise,  legacy,  or  gift 
may  have  been  made  or  given,  would  have  been  entitled  to 
any  share  in  the  testator's  estate  in  case  the  will  is  not  es- 
tablished, then  so  much  of  the  estate  as  would  have 
descended  or  would  have  been  distributed  to  such  wit- 
ness shall  be  saved  to  him  as  will  not  exceed  the  value  of 
the  devise  or  bequest  made  to  him  in  the  will;  and  he  may 
recover  the  same  from  the  devisees  or  legatees  named  in  the 
will  in  proportion  to  and  out  of  the  parts  devised  and  be- 
queathed to  him":  1  H.  C,  §1471;  Bal.  Code,  §4607;  Rem, 
&  Bal.  Code,  §  1332. 

§  199.  How  Will  is  Made.— "Every  will  shall  be  in  writ- 
ing, signed  by  the  testator  or  testatrix,  or  by  some  other 
person  under  his  or  her  direction  in  his  presence,  and  shall 
be  attested  by  two  or  more  competent  witnesses,  subscrib- 
ing their  names  to  the  will  in  the  presence  of  the  testator": 
1  H.  C,  §  1459;  Bal.  Code,  §  4595;  Rem.  &  Bal.  Code,  §  1320. 
"Every  person  who  shall  sign  the  testator's  or  testatrix's 
name  to  any  will  by  his  or  her  direction  shall  subscribe 
his  own  name  as  a  witness  to  such  will,  and  state  that  he 
subscribed  the  testator's  name  at  his  request":  1  H.  C, 
§  1460;  Bal.  Code,  §  4596;  Rem.  &  Bal,  Code,  §  1321. 


WILLS.  309 

§  200.    Form  of  Will. 

FORM  LXXVn. 
Last  Will  and  Testament  of  Jane  Eoe. 
I,  Jane  Eoe,  of  Seattle,  in  the  county  of  King,  and  state  of  Wash- 
ington, being  of  sound  and  disposing  mind  and  memory,  do  make,  pub- 
lish and  declare  this  to  be  my  last  will  and  testament,  hereby  revoking 
any  and  all  former  wills  by  me  at  any  time  heretofore  made. 

1.  I  bequeath  to  my  son  John  the  home  we  live  in. 

2.  I  bequeath  to  my  daughter  Mary  all  my  bank  stock. 

3.  I  bequeath  to  my  cousin  Jane  Doe  the  set  of  dishes  trimmed  in 
gold. 

4.  All  the  rest,  residue  and  remainder  of  my  estate,  real,  personal, 
and  mixed,  I  give,  devise  and  bequeath  to  my  two  children,  share  and 
share  alike. 

I  make,  constitute  and  appoint  my  son  John  to  be  my  executor  of  this 
my  last  will  and  testament. 

In  witness  whereof,  I  have  hereunto  subscribed  my  name  and  affixed 
my  seal  the  tenth  day  of  December,  in  the  year  of  our  Lord  one  thou- 
sand nine  hundred  ten. 

JANE  EOE.     [Seal] 

The  above  written  instrument,  consisting  of  two  pages  was  subscribed 
by  the  said  Jane  Eoe  in  our  presence,  and  acknowledged  by  her  to  each 
of  us;  and  she  at  the  same  time  declared  the  above  instrument  so  sub- 
scribed to  be  her  last  will  and  testament;  and  we  at  her  request,  in 
her  presence,  and  in  the  presence  of  each  other,  have  signed  our  names 
as  witnesses  hereto,  and  written  opposite  our  names  our  respective  places 
of  residence,  on  the  day  and  year  last  above  written. 

JOHN  JONES, 
Eesiding  at  400  1st  Ave.,  Seattle,  Wash. 

HENEY   THOMAS, 
Eesiding  at  40  W.  17th  St.,  Seattle,  Wash. 
JOHN  SMITH, 

Eesiding  at  Eenton,  Wash. 

[The  words  in  italics  most  be  changed  to  suit  the  case.] 


310  LAW  FOB  NOTARIES  PUBLIC. 


CHAPTER  XV. 

DEFINITIONS. 

§  201.  Definitions, — ^For  the  benefit  of  those  users  of  this 
book  who  will  not  be  able  to  consult  a  dictionary  of  law 
without  great  inconvenience,  there  has  been  added  here  a 
list  of  definitions  which  may  be  of  use  to  some  readers. 
Many  will  not  care  to  consult  it,  but  it  may  be  of  assistance 
to  some  and  is  added  with  that  in  view. 

"Attestation"  is  the  act  of  witnessing  an  instrument  in  writ- 
ing, at  the  request  of  the  party  making  the  same,  and 
subscribing  it  as  witness. 

**Ex  Officio"  are  Latin  words  meaning  "by  virtue  of  his 
office." 

"Admiralty  Law"  is  the  body  of  law  applied  to  all  maritime 
contracts,  torts,  injuries  or  offenses;  the  law  of  the  sea. 

"Court  of  Chancery"  is  a  court  formerly  existing  in  England 
and  still  existing  in  several  of  the  United  States,  which 
possesses  an  extensive  equity  jurisdiction. 

"Interrogatories"  is  the  name  given  to  the  questions  framed 
by  the  party  who  produces  the  witness  when  a  deposition 
is  to  be  taken,  but  neither  the  parties  nor  their  attorneys 
are  to  be  present. 

"Cross-interrogatories"  are  the  questions  framed  by  the  ad- 
verse party,  to  examine  witnesses  produced  on  the  other 
side. 

"Domicile"  is  that  place  where  a  man  has  his  true,  fixed,  and 
permanent  home  and  principal  establishment,  and  to 
which,  whenever  he  is  absent,  he  has  the  intention  of  re- 
turning. 

"Ad  Diem"  are  Latin  words  meaning  "at  the  day." 

"Franking  Privilege"  is  the  privilege  of  sending  certain 
matter  through  the  public  mails  without  payment  there- 
for. 


DEFINITIONS.  311 

** Collateral."  That  which  is  by  the  side,  ajid  not  the  direct, 
line.  That  which  is  additional  to  or  beyond  a  thing.  A 
collateral  issue  is  one  taken  upon  some  matter  aside  from 
the  general  issue  in  the  case. 

"Common  Law"  is  that  system  of  law  or  form  of  the  science 
of  jurisprudence  which  has  prevailed  in  England  and  in 
the  United  States  of  America,  in  contradistinction  to 
other  great  systems,  such  as  the  Roman  or  civil  law. 
Kent's  definition  is:  "Those  principles,  usages,  and  rules 
of  action  applicable  to  the  government  and  security  of 
persons  and  property,  which  do  not  rest  for  their  author- 
ity upon  any  express  and  positive  declaration  of  the  will 
of  the  legislature." 

** Civil  Law"  is  the  term  generally  used  to  designate  the 
Roman  jurisprudence. 

"Aliunde"  is  a  Latin  word  meaning  "from  another  place." 

"Functus  Officio"  are  Latin  words  which  are  applied  to 
something  which  once  has  had  life  and  power,  but  which 
has  become  of  no  virtue  whatsoever.  When  an  agent 
has  completed  the  business  with  which  he  was  intrusted, 
his  agency  is  functus  officio. 

"Ex  Parte"  are  Latin  words  which  mean  "by  one  party." 
An  affidavit  or  deposition  is  said  to  be  taken  ex  parte 
when  only  one  of  the  parties  attends  to  the  taking  of 
the  same. 

"Ex  Vi  Termini"  is  a  Latin  expression  meaning  "by  force 
of  the  term." 

"Bill  of  Lading"  is  a  written  acknowledigment  of  the  receipt 
of  certain  goods  and  an  agreement  for  a  consideration 
to  transport  and  to  deliver  the  same  at  a  specified  place 
to  a  person  therein  named  or  his  order.  It  is  at  once 
a  receipt  and  a  contract. 

"Affiant"  is  one  who  takes  an  oath  to  an  affidavit;  a  de- 
.    ponent. 

"Authentication"  consists  of  acts  done  with  a  view  of  caus- 
ing an  instrument  to  be  known  or  identified;  when  an 


312  LAW  FOR  NOTARIES  PUBLIC. 

instrument  is  to  go  to  a  foreign  country,  the  notary's 
certificate  of  acknowledgment  is  authenticated  by  the 
certificate  and  seal  of  the  county  clerk  or  secretary  of 
state,  and  this  is  in  turn  authenticated  by  the  certificate 
of  the  consul. 

**et  al."  stands  for  the  two  Latin  words  "et  alius,"  meaning 
"and  another." 

**et  als."  is  the  plural  form  of  **et  al.,"  and  means  "and 
others." 

**i.  e."  stands  for  the  Latin  words  "id  est,"  which  mean 
"that  is." 

"Hypothecation"  "is  a  right  which  a  creditor  has  over  a 
thing  belonging  to  another,  and  which  consists  in  a  power 
to  cause  it  to  be  sold,  in  order  to  be  paid  his  claim  out 
of  the  proceeds.  There  are  two  species  of  hypothecation, 
one  called  'pledge'  and  the  other  properly  denominated 
'hypothecation.'  'Pledge'  is  that  species  of  hypotheca- 
tion which  is  contracted  by  the  delivery  by  the  debtor 
to  the  creditor  of  the  thing  hypothecated.  'Hypotheca- 
tion,' properly  so  called,  is  that  which  is  contracted 
without  delivery  of  the  thing  hypothecated":  Bouv.  Law 
Diet. 

"Biennially."  Every  two  years.  "In  a  statute  this  term 
signifies,  not  duration  of  time,  but  a  period  for  the 
happening  of  an  event":  People  v.  Tremain,  9  Hun  (N. 
Y.),  573. 

*'Doctores  Utriusque  luris."  Learned  and  conversant  in  the 
law. 

"Fixtures."  Personal  chattels  affixed'  to  real  estate,  which 
may  be  severed  and  removed  by  the  party  who  has 
affixed  them,  or  by  his  personal  representatives,  against 
the  will  of  the  owner  of  the  freehold :  Bouv.  Law  Diet. 

"Acceptor  Supra  Protest";  "Acceptor  for  Honor."  These 
two  expressions  stand  for  the  same  person.  "Supra" 
means  "after."  Such  an  acceptor  is  one  who,  to  save 
the  credit  of  the  person  who  has  allowed  the  instrument 


DEFINITIONS.  313 

to  go  to  protest,  accepts  "after"  the  protest,  for  the 
"honor"  of  the  person  on  whom  it  is  drawn.  He  may 
also  accept  for  the  honor  of  one  of  the  indorsers. 

'Re-exchange."  The  expense  incurred  by  a  bill  being  dis- 
honored in  a  foreign  country  where  it  is  made  payable 
and  returned  to  that  country  in  which  it  was  made  or 
indorsed  and  there  taken  up:  Daniel  on  Negotiable  In- 
struments, p.  1445. 

'Exchange."  Exchange  is  a  negotiation  by  which  one  per- 
son transfers  to  another  funds  which  he  has  in  a  certain 
place,  either  at  a  price  agreed  upon  or  which  is  fixed 
by  commercial  usage:  Bouv.  Law  Diet.  (Rawle's  Rev.). 
By  the  rate  of  exchange  between  two  places  is  meant  that 
amount  of  premium  which  it  will  require  to  replace  a 
certain  sum  of  money  in  one  place  with  that  of  the 
other;  or  which  the  right  to  a  certain  sum  in  one  coun- 
try will  produce  in  another  country.  Or,  putting  it 
briefly,  it  is  the  difference  in  value  of  the  same  amount 
of  money  in  different  countries :  11  Am.  &  Eng.  Ency.  of 
Law,  2d  ed.,  p.  559. 

'Canon  Law."  "A  body  of  ecclesiastical  law,  which  orig- 
inated in  the  church  of  Rome,  relating  to  matters  of 
which  that  church  has  or  claims  jurisdiction":  Bouv. 
Law  Diet.  (Rawle's  Rev.). 

'An  Besoin."  (French.)  Same  as  the  "Referee  in  Case  of 
Need."  "A  phrase  used  in  the  direction  of  a  bill  of 
exchange,  pointing  out  the  person  to  whom  application 
may  be  made  for  payment  in  case  of  failure  or  refusal 
of  the  drawee  to  pay":  Bouv.  Law  Diet.  (Rawle's  Rev.). 

'Days  of  Grace."  It  was  the  custom  and  law  up  to  a  com- 
paratively recent  time  to  allow  three  days  to  the  ac- 
ceptor of  a  bill  or  the  maker  of  a  note  in  which  to  make 
payment,  in  addition  to  the  time  contracted  for  by  the 
bill  or  note  itself.  They  were  so  called  because  in  early 
times  they  were  allowed  by  the  grace  or  favor  of  the  one 
to  whom  the  money  was  due.  Days  of  grace  were 
abolished  by  the  "Negotiable  Instruments  Law":  Bouv. 
Law  Diet.    (Rawle's  Rev.). 


314  LAW  FOB  NOTARIES  PUBLIC. 

"Chambre  des  Notaires."  The  board  in  France  whicli  ex- 
amines applicants  for  the  position  of  notary. 

"Licencie  en  Droit."  One  licensed  in  the  law;  one  who 
has  been  granted  the  privilege  to  perform  certain  pub- 
lic acts. 

"Elite."  A  French  word  meaning  the  choicest  part.  Here 
the  flower  of  the  law  profession. 

"Etude."  A  French  word  meaning  "study,"  but  here  used 
in  the  sense  of  "office." 

"Apostolic  See."    The  office  of  the  Pope  at  Rome. 

"Papal  Notary."     One  appointed  by  the  Pope  at  Rome. 

"Apostolic  Notaries."  Notaries  appointed  by  the  Pope  at 
Rome. 

"Roman  See."    The  office  of  the  Pope  at  Rome. 

"Supra  Protest."    After  protest. 

"Acceptance  Supra  Protest."  An  acceptance  after  it  has 
been  protested. 

"Stipulation."  An  agreement  between  counsel  respecting 
business  before  the  court:  Anderson's  Law  Diet. 

"Title."  The  title  of  a  cause  consists  usually  of  the  name 
of  the  court,  the  venue,  and  the  parties. 

"Prima  Facie."  (Latin.)  "At  first  view  or  appearance  of 
the  business;  as  the  holder  of  a  bill  of  exchange,  in- 
dorsed in  blank,  is  prima  facie  its  owner.  Proof  of  the 
mailing  of  a  letter  is  prima  facie  evidence  of  its  receipt 
by  the  person  to  whom  it  is  addressed":  Bouv.  Law 
Diet.  (Rawle's  Rev.). 

"Respondent."  "The  party  who  makes  an  answer  to  a  biU 
or  other  proceedings  in  chancery":  Bouv,  Law  Diet. 
(Rawle's  Rev.). 

"Laches."  (From  French  "lacher.")  "Unreasonable  de- 
lay ;  neglect  to  do  a  thing  or  to  seek  to  enforce  a  right 
at  a  proper  time":  Bouv.  Law  Diet.  (Rawle's  Rev.). 

"Warehouse  Receipts."  "Receipts  given  by  a  warehouse- 
man for  chattels  placed  in  his  possession  for   storage 


DEFINITIONS.  315 

purposes.  They  are  not  in  a  technical  sense  negotiable 
instruments,  but  have  been  made  so  by  statute ' ' :  Bouv. 
Law  Diet.  (Rawle's  Rev.). 

"Narrative  Form."  "An  orderly  continuous  account  of 
successive  particulars  of  an  event  or  of  a  series  of 
events":  Standard  Diet.  Told  the  same  as  a  person 
would  tell  a  story. 

"Manifest."  "A  written  instrument  containing  a  true  ac- 
count of  the  cargo  of  a  ship  or  a  commercial  vessel.  It 
must  contain  a  list  of  all  packages  or  separate  items 
of  freight  with  their  distinguishing  marks,  numbers,  etc. 
By  the  United  States  statute  it  must  also  designate  the 
ports  of  lading  and  of  destination,  a  description  of  the 
vessel  and  the  designation  of  its  owners,  and  must  con- 
tain the  names  of  the  consignees  and  passengers  with 
a  list  of  their  baggage  and  an  account  of  the  sea  stores 
remaining":  U.  S.  Rev.  Stats.,  §  2807;  Bouv.  Law  Diet. 
(Rawle's  Rev.). 

"Felony";  "Gross  Misdemeanor";  "Misdemeanor."  "A 
crime  is  an  act  or  omission  forbidden  by  law  and  pun- 
ishable upon  conviction  by  death,  imprisonment,  fine  or 
other  penal  discipline.  Every  crime  which  may  be  pun- 
ished by  death  or  by  imprisonment  in  the  state  peniten- 
tiary is  a  felony.  Every  crime  punishable  by  a  fine  of 
not  more  than  two  hundred  and  fifty  dollars,  or  by  im- 
prisonment in  a  county  jail  for  not  more  than  ninety 
days,  is  a  misdemeanor.  Every  other  crime  is  a  gross 
misdemeanor":  Laws  1909,  p.  890,  §1;  Rem.  &  Bal. 
Code,  §2253. 

"Misfeasance."  The  doing  of  a  lawful  act  in  an  unlawful 
manner:  2  Kent's  Com.,  p.  443. 

"Malfeasance."  The  doing  of  an  act  which  is  positively 
unlawful  or  wrongful:  2  Kent's  Com,,  p.  443. 

"Nonfeasance."  The  nonperformance  of  some  act  which 
ought  to  be  performed :  Bouv.  Law  Diet. 

"Non-negotiable."  An  instrument  not  payable  "to  order" 
or  "to  bearer." 


316  LAW   FOR  NOTARIES  PUBLIC. 

"Standard  Fire  Insurance  Policy."  A  form  of  fire  insur- 
ance policy  which  has  been  adopted  by  a  large  number 
of  the  states  of  the  United  States;  the  insurance  com- 
panies issue  them  even  in  states  where  they  are  not  de- 
manded by  statute. 

"Maturity."    The  time  when  a  bill  or  note  becomes  due. 

"Subpoena."  (Latin,  "sub"  meaning  "under"  and 
"poena"  meaning  "penalty.")  A  process  to  cause  a 
witness  to  appear  and  give  testimony  under  a  penalty 
therein  mentioned. 

"Subpoena  Duces  Tecum."  (Latin,  "duces"  meaning 
"bring"  and  "tecum"  meaning  "with  you.")  A  writ 
or  process  ordering  the  witness  to  appear  and  also  to 
bring  with  him  and  produce  to  the  court  certain  books, 
papers,  etc.,  in  his  hands  tending  to  elucidate  the  mat- 
ter in  issue :  2  Black.  Com.,  p.  382. 

"Ministerial."  "That  which  is  done  under  the  authority 
of  a  superior;  opposed  to  judicial;  as,  the  sheriff  is  a 
ministerial  officer  bound  to  obey  the  judicial  commands 
of  the  court":  Bouv.  Law  Diet.  (Rawle's  Rev.). 

"Judicial."  "Judicial  power  is  the  power  of  a  court  to  de- 
cide and  pronounce  a  judgment  and  carry  it  into  effect 
between  persons  and  parties  who  bring  a  case  before  it 
for  decision":  Miller,  Const.  U.  S.,  p.  314. 

"Verification."    "An    averment    by    the    party  making  a 
pleading  that  he  is  prepared  to  establish  the  truth  of 
the  facts  which  he  has  pleaded":  Bouv.  Law  Diet.    An 
•>     affidavit  of  one  of  the  parties  that  the  facts  in  the  plead- 
ing are  true. 

"Jones  V.  Smith,  121  Mass.  15,"  means  that  the  statement 
preceding  or  to  which  that  refers  is  based  on  a  decision 
of  the  court  in  Massachusetts  handed  down  by  a  judge 
in  a  case,  in  which  one  person,  Jones,  brought  suit 
against  another  person.  Smith,  and  that  the  opinion  may 
be  found  in  volume  121  at  page  15  of  the  official  reports 
of  Massachusetts.  Sometimes  the  form,  "Jones  v. 
Smith,  10  Wend.  (N.  Y.)  100,"  is  found.    That  refers  to 


DEFINITIONS.  317 

a  report  of  the  state  of  New  York.  "Wend."  is  an 
abbreviation  of  the  name  of  a  man  who  published  re- 
ports of  New  York  cases. 

"Statute  Law"  is  the  law  created  from  time  to  time  by  acts 
of  legislatures.  Where  statute  law  conflicts  with  the 
common  law,  the  latter  is,  during  the  life  of  the  statute, 
a  nullity. 

"Bona  Fide  Holder"  is  one  who  has  taken  a  negotiable  in- 
strument before  it  was  due,  and  with  no  notice  of  any 
irregularity  in  the  instrument,  or  of  any  valid  defenses 
that  the  maker  had  to  it — and  the  owner  must  have 
parted  with  something  of  value  in  acquiring  it.  The 
consideration  need  not  have  been  money — it  may  have 
been  property,  the  granting  of  credit,  or  some  disad- 
vantage which  the  holder  assumed  in  acquiring  it. 
Such  a  holder  is  also  called  a  "holder  in  due  course." 

"Commission"  is  an  instrument  issued  by  a  court  of  jus- 
tice, or  other  competent  tribunal,  to  authorize  a  person 
to  take  depositions,  or  do  any  other  act  by  authority 
of  such  court  or  tribunal. 

"In  Rem."  Latin  words  meaning  "against  the  thing." 
It  is  a  technical  term  used  to  designate  proceedings  or 
actions  instituted  against  the  thing,  in  contradistinction 
to  personal  actions,  which  are  said  to  be  in  personam, 
against  the  person. 

"Statute  of  Limitations."  "Statutes  limiting  the  time 
within  which  a  party  having  a  cause  of  action  should 
appeal  to  the  courts  for  redress":  Bouv.  Law  Diet. 
(Rawle's  Rev.). 

"De  Bene  Esse."  "A  Latin  phrase  meaning  conditionally 
or  provisionally.  The  examination  of  a  witness  de  bene 
esse  takes  place  where  there  is  danger  of  losing  the  tes- 
timony of  an  important  witness  from  death,  by  reason 
of  age  or  dangerous  illness,  or  where  he  is  the  only 
witness  to  an  important  fact.  In  such  a  case,  if  the 
witness  is  alive  at  the  time  of  the  trial,  his  examination 
is  not  to  be  used":  Bouv.  Law  Diet.  (Rawle's  Rev.). 


318  LAW  FOB  NOTARIES  PUBLIC. 

"Letters  Eogatory."  "An  instrument  sent  in  the  name 
and  by  the  authority  of  a  judge  or  court  to  another, 
requesting  the  latter  to  cause  to  be  examined,  upon 
interrogatories  filed  in  a  cause  depending  before  the 
former,  a  witness  who  is  within  the  jurisdiction  of  the 
judge  or  court  to  whom  such  letters  are  addressed": 
Bouv.  Law  Diet.  (Rawle's  Rev.). 

"Perpetuam  Memoriam  Rei. "  A  Latin  expression  meaning 
to  preserve  an  account  of  the  matter.  Practically  the 
same  as  "de  bene  esse." 

"Protocol."  "A  record  or  registry.  Specifically:  (1)  Civ. 
Law.  The  record  made  and  kept  by  a  notary  of  a  con- 
tract or  other  act  executed  before  him.  (2)  Hence,  in 
that  part  of  the  United  States  which  formerly  belonged 
to  Mexico,  the  original  entry  made  by  a  notary,  alderman, 
or  commissioner  of  a  grant,  transfer,  or  extension  of  title 
to  lands ' ' :   Standard  Diet. 

"Legal  Tender."  In  accepting  payment  on  a  bill  of  ex- 
change or  promissory  note  a  notary  would  be  obliged  to 
accept  the  following,  being  under  the  laws  of  the  United 
States  legal  tender:  Gold  coins  of  the  United  States,  sil- 
ver coins  of  the  United  States  of  the  amount  of  one  dol- 
lar or  of  smaller  denomination  to  the  amount  of  ten  dol- 
lars, minor  coins  to  the  amount  of  twenty-five  cents, 
United  States  notes,  demand  treasury  notes.^  Trade 
dollars  are  not  legal  tender.* 

The  index  will  refer  the  reader  to  definitions  given  in  the 
various  chapters. 

1  U.  S.  Rev.  Stats.,  §§  3584-3590;  2  19  Stats,  at  Large,  215,  revis- 

U.  S.  Rev.  Stats.  Supp.  (1874^91),      ing  Rev.  Stats.,  §  3586. 
p.  264;  21  Stats,  at  Large,  7. 


INDEX. 


[Beferonces  are  to  Pages.] 

Abbreviations  of  names  should  not  be  used,  133. 

words  in  legal  instruments  should  not  be  abbreviated,  133. 
Absconding,  on,  of  debtor,  bill  of  exchange  may  be  protested  for  better 

security,  239. 
Acceptance,  how,  of  bill  of  exchange  is  shown,  222. 

of  bill  drawn  in  parts,  222. 

certification  of  check  equivalent  to,  222. 

examples  of  sufiScient  acceptances,  222. 

presentment  for,  excused  when,  222. 

when  bill  is  dishonored  because  of  non,  223,  280. 

when  bill  is  dishonored  because  not  accepted  in  time,  223. 

holder  may  refuse  qualified,  221. 

result  of  qualified  acceptance,  221. 

definition  of,  220. 

duty  of  holder  if  no,  223.      ' 

right  which  accrues  to  holder  when  no,  223. 

of  different  parts  of  a  set,  285. 

holder  may  require,  in  writing,  277. 

on  separate  paper,  277. 

promise  of,  effect  of,  278. 

time  to  consider,  278. 

when,  presumed,  278. 

time  of,  278. 

either  general  or  qualified,  278. 

qualified,  rights  of  parties  under,  279. 

presentment  for,  when  necessary,  279. 

presentment  for,  to  whom,  when,  279. 

presentment  for,  on  what  days,  280. 

presentment  for,  failure  of,  excusable  when,  280. 

dishonored  when,  not  prompt,  280. 

effect  of  dishonor  by  non,  281. 
See  "Protest." 
Acceptance  for  Honor,  when  allowed,  240. 

may  be  for  part  of  the  bill,  240. 

must  be  in  writing,  etc.,  240. 

presumed  for  whose  honor  when,  240. 

acceptor  is  liable  to  whom,  240. 

when  acceptor  liable,  240. 

procedure  under,  241,  282. 

maturity  of  bill  payable  after  sight  calculated  how,  241. 

time  presentment  for,  must  be  made,  241. 

when,  refused  it  must  be  protested,  241. 

liability  in,  283. 

nndertaking  in,  283. 

See  "Acceptance  for  Honor." 
Acknowledgnaent,  notary  public  may  take,  10,  38,  71,  86,  149. 

of  agreement  of  arbitration  between  carriers  and  their  employees 
may  be  made  before  notarv,  79. 
(319), 


320  INDEX. 

[References  are  to  Pages.] 

Acknowledgment,  origin  of  doctrine  that,  is  a  judicial  act,  41. 

notary  took  acknowledgment  of  mortgagor  to  mortgage  given  to 
corporation  of  which  he  was  an  officer  and  stockholder,  40. 

in  deed  to  wife,  husband  took  grantor's,  40. 

to  power  of  attorney  to  be  used  in  England,  62. 

no  general  power  to  take,  under  federal  law,  69. 

may  be  taken  by  notary  under  federal  laws  same  as  by  justices  of 
peace  and  circuit  court  commissioners,  73. 

for  false,  in  matter  of  claim  for  pension  or  bounty  land,  notary 
guilty  of  crime,  77. 

to  mortgages,  etc.,  on  a  vessel  may  be  taken  by  notary,  77. 

officer  of  corporation  may  take,  of  a  mortgage  to  which  corporation 
is  a  party,  90. 

power  to  take,  not  incident  to  office  of  notary,  must  be  in  statute, 
81. 

accepted  in  foreign  state  if  accompanied  with  authentication,  81. 

how  taken,  regulated  by  statute  in  foreign  state,  81. 

must  be  taken  as  foreign  statute  designates,  81. 

notary  must  make,  to  his  signature  to  his  bond,  50. 

sureties  must  make,  to  their  signatures  to  their  bonds,  50. 

powers  of  notary  to  take,  under  international  law,  57. 

of  grantor  may  be  taken  by  husband  of  grantee,  90. 

notary  criminally  liable  for  making  false,  80,  97,  168. 

person  making  false,  criminally  liable,  100. 

person  who  personates  notary  and  takes,  guilty  criminally,  97. . 

where  it  may  be  taken  by  notary,  55. 

notary  disqualified  to  take  when,  87. 

under  federal  statutes  must  have  seal,  52. 

forms  of  different  states  found  in  Hubbell's  Legal  Directory,  81. 

certificate  of,  should  be  where,  166. 

certificate  of,  should  be  written  when,  166. 

notary's  seal  should  be  affixed,  167. 

notary  must  not  certify  that  he  knows  personally  the  one  making 
the,  if  he  does  not,  169. 

notary  who  takes  in  verification  of  a  lien  notice  must  affix  his  seal, 
137. 

two  powers  which  accompany:  (a)  to  entitle  the  instrument  to 
registration;  (b)  to  render  the  instrument  admissible  as  evi- 
dence, 147. 

a  creation  of  modern  statutes  unknown  to  common  law,  147. 

an  agreement  to  convey  need  not  be  acknowledged,  147,  148. 

plat  must  be  acknowledged  for  record  at  the  auditor's  office,  170. 

date  of,  should  be  carefully  filled  in,  166. 

if  several  grantors  each  should  acknowledge  hia  signature,  150. 

what  should  be  added  after  notary's  name  to  certificate  of  acknowl- 
edgment, 166. 

venue  of  certificate  of,  166. 

in  taking,  if  there  is  any  question  as  to  person's  ability  to  under- 
stand his  act,  notary  should  make  explanation,  154. 

as  to  duty  of  notary  to  explain  contents  of  if  person  is  a  man  of 
intelligence,  154. 

interpreter  to  be  used,  when,  154. 

each  member  of  limited  partnership  must  acknowledge  under  law 
of  1869,  151. 

of  corporation  may  be  made  by  whom,  151. 


INDEX.  321 

[References  are  to  Pages.] 

Acknowledgment,    some  requirements  which   must   be   followed:  (1) 

notary  must  be  sure  of  identity  of  person;   (2)  notary  must 

be  sure  person  understands  meaning  and  contents  of  deed; 

(3)  person  must  make  unequivocal  acknowledgment,  153. 
ancient  custom  degenerated,  153. 
proper  signature  to  an,  152. 
cannot  be  taken  by  notary's  clerk,  105. 
commissioner  of  deeds  may  take,  304. 
necessary  age  of  grantor  who  makes,  152. 
should  be  made  by  person  who  executed  the  instrument,  150. 
certificate  of,  of  man  as  attorney  in  fact  for  his  wife,  151. 
of  married  woman  taken  same  as  of  a  man,  151. 
one  of  partners  may  acknowledge  instrument  running  in  name  of 

partnership,  150. 
may  be  made  by  infant  but  he  may  revoke  transfer,  151. 
may  be  made  by  attorney  if  he  is.  so  authorized,  150. 
by  person  not  executing  instrument  nor  by  his  agent  is  of  no 

effect,  150. 
who  may  make,  150. 
contents  of  chapter  on,  146. 
of  grantors  may  be  taken  before  grantee's  husband  as  to  wife's 

separate  property,  149. 
in  Washington  held  to  be  a  ministerial  act,  40,  149. 
nature  of  the  act  of,  149. 

means  both  the  act  and  the  written  evidence  thereof,  148. 
object  of,  and  how  object  is  accomplished,  146. 
a  protection  to  the  purchaser  of  property,  147. 
fees  for  taking,  103. 

deed  must  be  acknowledged  before  authorized  person,  147. 
instruments  enumerated  which  must  be  acknowledged  before  they 

can  be  recorded,  147. 
power  to  acknowledge  is  implied  from  a  power  of  attorney  to 

execute,  150. 
demands  of  other  states  when  notary  does  not  know  personally 

person  wishing  to  make,  154. 
demands  of  New  Jersey  court  as  to  explanation  of  instrument  by 

notary,  154. 
forms  of  certificate  of,  to  be  followed  substantially,  156. 
case  of  Kley  v.  Geiger  showing  that  forms  of,  must  be  followed 

only  substantially,  157. 
case  of  Jackson  v.  Tatebo  as  to  what  should  be  done  by  notary  in 

way  of  explanation  of  a  deed,  155. 
grantor  must  appear  before  notary  for  purpose  of  making,  155. 
admission  of  person  that  he  acknowledged  the  deed  must  be  for  the 

purpose  of  giving  it  authenticity,  155. 
agreement  of  husband  and  wife  as  to  property  must  be,  169. 
power  of  attorney  dealing  with  registered  lands  must  be,  170. 
husband  and  wife  must  execute  and  acknowledge  homestead  deed, 

170. 
power  of  attorney  between  husband  and  wife  nmst  be,  170. 
notary  may  take,  of  Indian,  170. 
wife  must  join  in,  of  community  property,  169. 
how  amendment  of  certificate  of,  should  be  made,  167. 
must  be  unequivocal,  155. 

casual  admission  in  presence  of  a  notary  not  sufficient,  155. 
notary  must  be  sure  of  identity  of  person  making,  153. 
knowledge  notary  should  have  of  person  making,  153. 

21 


322  INDEX. 

[References  are  to  Pages.] 

Acknowledgment,  validity  of  an,  taken  on  Sunday  or  on  a  legal  holi- 
day, 153. 

of  deaf  and  dumb  persons  taken  how,  154. 

how  act  of  acknowledgment  should  be  taken,  155. 

question  as  to   suflBciency  of  introduction  of  person  desiring  to 
make,  153. 

time,  should  be  taken,  153. 

notary's  position  as  to  blanks  in  a  deed,  153. 

of  intoxicated  person  could  be  set  aside  by  showing  that  he  was 
deprived  of  his  understanding,  151. 

of  insane  person  could  be  set  aside  by  showing  the  fact,  151. 

to  be  used  in  sister  state  should  be  accompanied  with  certificate, 
84. 

of  grantor  cannot  be  taken  by  grantee,  87. 

of  mortgagor  cannot  be  taken  by  mortgagee,  87. 

cannot  be  taken  by  trustee  in  deed  of  trust,  87. 

notary's,  cannot  be  before  himself,  88. 

cannot  be  before  notary  if  he  is  beneficially  interested,  88. 

in  case  of  several  grantees  when  he  may  act,  88. 

of  mortgagor  when  mortgage  is  given  to  corporation  may  be  taken 
by  notary  although  he  is  an  officer  of  corporation,  88. 

may  be  by  notary  although  he  is  agent  or  attorney  if  not  benefi- 
cially interested,  88. 

relationship  will  not  bar  notary  taking,  88. 

is  a  ministerial  act,  88. 
Action  against  notary  or  surety  may  be  in  name  of  one  injured,  93,  94. 

when,  accrues  in  case  of  fraud,  95. 

against  notary  may  be  begun  when,  95. 

Acts  of  notaries  de  facto  cannot  be  collaterally  attacked,  106. 

Administration  of  oath  must  vary  with  the  person,  112. 
who  may  take  oath,  113. 
of  oath  a  ministerial  act,  115. 
of  oath  cannot  be  over  telephone,  113. 
who  may  administer  oath,  115. 
evidence  of,  of  oath,  117. 
of  oath  in  deposition  must  be  public,  200. 
statutory  oath  must  be  used  in,  of  oath  in  deposition,  200. 

Administrator  must  deposit  notary's  records  when,  102. 

Admiralty  Law,  how  depositions  are  taken  under  the,  174. 

Affiant  should  sign  his  own  name,  132. 

if  a  foreigner  must  understand  the  oath  he  took,  130. 
name  of,  should  be  the  same  throughout  the  affidavit,  132. 
need  not  hold  up  his  hand  in  swearing  to  an  affidavit,  124. 
when,  is  foreigner  interpreter  may  be  used,  130. 

Affidavit,  notary,  principal  in  an  appeal  bond  took,  of  sureties,  40. 
notary  may  take,  of  persons  claiming  a  copyright,  78. 
notary  interested  in  case  took,  of  sureties,  40. 
notary  may  take,  in  general  in  United  States,  10. 
to  be  used  in  English  courts,  59. 

should  be  authenticated  according  to  law  of  place  where  made,  59. 
sworn  to  in  United  States  receivable  in  courts  of  Canada,  57. 
no  general  power  to  take,  under  federal  law,  69. 
of  applicants  for  mineral  patents  may  be  taken  by  notary,  75. 
of  work  on  Alaska  mining  claim  may  be  taken  by  notary,  76. 
fee  in  land  office  cases,  75. 


INDEX.  323 

[References  are  to  Pages.] 

Affidavit,  in  patent  office  cases  may  be  taken  by  notary,  77, 

for  false,  in  matter  of  claim  for  pension  or  bounty  land  notary 

guilty  of  crime,  77. 
law  as  to  notaries  in  Quebec,  59. 
notary's,  should  be  authenticated  by  consul,  58. 
powers  of  notary  to  take,  under  international  law,  57. 
marine  protest,  66. 
may  be  taken  by  notary  if  he  is  so  authorized  by  a  rule  of  court 

or  by  a  regulation  of  the  head  of  a  department,  80. 
marine  note  of  protest,  64. 
may  be  taken  by  notary  if  he  is  so  authorized  by  the  custom  of 

a  department  of  the  United  States,  80. 
may  be   taken   by   notary  in   matters   connected  with    taxes   on 

legacies,  79. 
surety  to  notary's  bond  must  make,  50. 

of  importer  to  be  given  collector  may  be  taken  by  notary,  76. 
attorney  may  take,  of  his  client,  89. 
disqualification  of  notary  to  take,  89. 
to   be  produced   to   judge  or  court   before  beginning   action    on 

notary's  bond,  94. 
notary  public  may  take,  concerning  mineral  lands,  76. 
where  it  may  be  taken  by  notary,  55. 
of  claimant  to  mining  right  may  be  taken  by  notary,  76. 
of   sureties   attached  to  an   appeal  bond  may  be  taken  by  the 

principal,  92. 
notary  disqualified  to  take  when,  89. 
under  federal  statutes  must  have  seal,  52. 
false  certificate  criminal,  80. 
notary  may  take,  38,  71,  86,  125. 

who  may  make,  for  corporation,  private  and  municipal,  124. 
a  statement  formally  reduced  to  writing,  125. 
parts  of,  125. 
the  jurat,  134. 
may  be  in  any  language  so  long  ai  the  affiant  understood  the  oath 

he  took,  130. 
the  title  should  precede  affidavit  when;  not  absolutely  demanded 

when,  125. 
words  to  be  added  after  notary's  name  in  jurat  of,  135. 
not  signed  by  affiant,  131. 

agent  cannot  make,  in  his  principal's  name,  131. 
venue  of,  127. 

title  of,  should  be  exact  copy  of  title  of  case,  125. 
in  suit  which  has  not  been  begun  should  not  be  entitled,  126. 
history  of  form  of,  127. 

by  party  as  guardian  is  his  private  affidavit,  124. 
several  persons  may  swear  to  same,  124. 
must  show  that  it  was  sworn  to,  124. 
who  may  make,  122. 

two  questions  to  be  asked  by  notary,  122. 
as  to  special  persons  called  upon  to  make  certain  affidavits  must 

refer  to  statutes,  123. 
is  not  made  under  cross-examination,  122. 
when  perjury  in  taking,  119. 
affiant  should  sign  his  own  name  to,  132. 
name  of  affiant  in  body  should  be  in  same  form  that  he  writes  it 

at  the  end,  132. 
cannot  be  taken  by  notary's  clerk,  105. 


334  INDEX. 

[References  are  to  Pages. 1 

Affidavit,  of  service  must  be  made  when  person  not  an  officer  serves 

subpoena,  193. 
commissioner  of  deeds  may  take,  304, 
contents  of  chapter  on,  121. 
certifying  to  a  list  of  creditors,  142. 
in  attachment,  140. 
of  nonmarriage,  141. 
of  identity,  142. 

showing  how  corrections  should  be  made,  139. 
with  full  jurat,  139. 
with  no  title — not  taken  in  a  case,  139. 
when,  shall  be  deemed  complete,  137. 
false,  criminal  liability,  137. 
the  body  of  an,  129. 
the  date  of,  129. 
corporal  oath  not  essential,  124. 
not  necessary  that  affiant  hold  up  his  hand,  124. 
difference  between,  and  deposition,  175. 
taken  in  a  different  county  from  the  one  in  which  he  lives  should 

be  given  what  venue  by  notary,  136. 
words  notary  should  write  after  his  name  if,  ia  taken  out  of  his 

own  county,  136. 
jurat  prima  facie  evidence  that  the  facts  therein  were  sworn  to, 

135. 
no  matter  in  what  part  of  the,  the  jurat  is  so  long  as  it  embodies 

the  necessary  facts,  135. 
foreigner  should  sign,  written  in  English  how,  132. 
signature  to  an,  130,  132. 

after  reading  the,  affiant  should  sign  where,  130. 
how  signature  of  ignorant  person  is  made,  130. 
without  venue  good  if  it  can  be  shown  it  was  taken  in  notary's 

jurisdiction,  128. 
good  practice  to  use  venue,  128. 
must  be  voluntary  and  ex  parte,  121. 
jurat  is  no  part  of,  proper,  135. 
partnership  cannot  make,  123. 
must  be  sworn  to  before  legal  officer,  121. 
must  be  reduced  to  writing,  121. 
written  statement  must  be  sworn  to  or  affirmed,  121. 
true  test  of  sufficiency  of,  122. 
body  of,  should  be  composed  of  what,  130. 
should  not  be  ambiguous,  130. 
should  consist  of  clear,  concise  statements  of  fact,  not  conclusions, 

130. 
should  not  contain  interlineations  and  erasures,  130. 
how  interlineations  and  erasures  should  be  marked,  130. 
fees  for  certifying,  103. 
to  be  used  in  sister  state  should  be  accompanied  with  certificate, 

84. 
stand  taken  by  Washington  in  matter  of  an,  taken  in  foreign  state 

to  be  used  here,  84. 
of  one  surety  in  a  bond  may  be  taken  by  another  surety  who  is  a 

notary,  91. 
power  of  notary  to  take  purely  statutory,  82. 
may  be  taken  by  notaries  in  most  states,  82. 
to  be  used  in  foreign  state  must  conform  to  foreign  statute,  82. 


INDEX.  325 

[Beferences  are  to  Pages.] 

Affidavit,  certificate  of  notary  that  he  has  power  to  take,  sufficient 
authentication  in  some  states,  82. 
must  be  properly  authenticated  if  to  be  used  in  foreign  state,  82. 
Affirmation  may  be  made  instead  of  oath  under  federal  statutes,  69. 
powers  of  notary  to  administer  under  international  law,  57. 
of  officer  of  national  bank  may  be  taken  by  notary,  78. 
when  allowed,  78,  116. 
included  in  word  "oath,"  111. 
history  of,  109. 

false,  same  as  false  o-ith,  78,  112,  117. 
may  be  made  by  whom,  109. 

when,  is  made  notary  need  not  set  out  in  jurat  that  affiant  has 
conscientious  scruples,  134. 
See  "Oaths." 
notary  may  administer,  in  bankruptcy  matters,  78. 
"Affirmed"  must  appear  in  jurat,  136. 
Affirms,  when  person,  not  necessary  to  explain  this  fact  in  the  jurat, 

118. 
Age  of  notary,  2. 

of  majority,  307. 

of  child  desiring  to  be  sworn,  113. 
of  child  not  test  for  oath,  113. 
Agent,  signature  by,  will  hold  principal,  258. 
liability  of,  259. 
agency  should  be  shown  when  principal  does  not  make  affidavit, 

123. 
of  claimant  to  mining  right  may  make  affidavit  before  notary,  76. 
lawfully  authorized  agent  may  acknowledge,  150. 
when,  makes  affidavit  in  attachment  instead  of  one  of  parties  ex- 
planation should  be  given,  140. 
when,  can  make  affidavit,  what  should  be  shown,  123. 
authority  of,  ends  when,  in  matter  of  presentment  of  bill  of  ex- 
change, 217. 
how,  may  give  notice  of  dishonor,  243. 
when,  makes  acknowledgment,  the  certificate  must  show  that  it  i» 

made  on  behalf  of  the  principal,  150, 
proof  of  authority  of,  need  not  be  stated  in  certificate,  150. 
cannot  make  affidavit  in  his  principal's  name,  131. 
notary  is  liable  as,  when,  253, 
Agreement  of  husband  and  wife  as  to  property  must  be  acknowledged, 
169. 
to  convey  land  need  not  be  sealed  or  acknowledged,  148. 
to  convey  need  not  be  acknowledged,  147. 
in  writing  to  convey  land,  deposition  allowed  when  party  bound  to 

convey  dies,  187, 
between    carriers    and    employees    may   be   acknowledged   before 
notary,  79. 
Alaska  Mining  Claim,  affidavit  as  to  work  on,  may  be  taken  by  notary, 

76. 
Alien   cannot  be  a  notary,  42, 
Alterations,  material,  effect  of,  276. 
Ambiguities,  construction  of,  258. 

Amendment,  how,  of  certificate  of  acknowledgment  should  be  made, 
167, 
how,  is  made  to  answers  in  a  deposition,  200. 


326  INDEX. 

TBeferences  are  to  Pages.] 

Amendment,  in  general,  5,  43. 

steps  to  be  taken  by  applicant  for  appointment  as  notary,  43. 
for  counties  in  some  states,  8. 
for  whole  state,  8. 
period  of,  in  different  states,  8. 
qualifications  for,  in  different  states,  8,  9. 
women  may  be  in  some  states,  9. 
in  Washington,  9,  39. 
of  commissioners  of  deeds,  .'504. 

petition  for,  as  notary,  must  be  signed  by  twenty  freeholders,  44. 
person  criminally  liable  who  is  applying  for,  but  exercising  func- 
tions, 97. 
in  different  states,  8. 
made  by  governor  in  Washington,  43. 
must  be  made  in  mode  prescribed  by  law,  43. 
women  may  be  appointed  in  Washington,  41,  42. 
letter  sent  notary  notifying  him  of  his  appointment,  46. 

Arbitration,  agreement   of,  between  carriers  and  emoloj'ees   may  be 
acknowledged  before  notary,  79. 

Assignment  for  Benefit  of  Creditors,  procedure  whan  maker  of  nego- 
tiable instrument  becomes  a  bankrupt,  239. 
notice  of  dishonor  given  to  whom,  245. 
Assignment  of  Trademark,  notary  may  take  acknowledgment  of,  78 
Attachment,  affidavit  in,  140. 
Attestation,  fees  for,  of  any  written  instrument,  103. 

Attorney  at  Law,  origin  of,  2. 

who  is  notary  may  administer  any  oath  to  client,  86,  89,  115. 
may  acknowledge  for  client  if  he  is  so  authorized,  1.50. 
when,  makes  acknowledgment,  the  certificate  must  show  that  it 
is  made  on  behalf  of  the  principal,  150. 

Attorney  in  Fact,  certificate  of  acknowledgment  of,  159. 
general   letter   of,   in   bankruptcy,    160. 

Authentication,  certificate  of,  to  be  added  when,  167. 

affidavit  and  acknowledgment  to  be  used  in  sister  state  should 

have,  84. 
certificate  of  notary  must  have  proper,  if  to  be  used  in  foreign 

state,  81,  82. 
should  be   made  as  to  signature   of  notary  or  county  clerk  for 

all   instruments   to   be  used  under   international   law   except 

protest  of  bill  of  exchange,  57. 
may  be  by  certificate  of  either  county  clerk  or  secretary  of  state, 

59. 
need  be  by  one  officer  only,  59. 
by  foreign  notary,  10. 

of  notary's  character  should  be  had  from  consul,  58. 
Authority    of  notary  should  be  authenticated  when,  84. 

"Bachelor,"  when  word  should  be  used,  165. 

Bank,  cashier  of,  to  which  paper  belongs  may  protest  as  notary,  90. 
maker  of  note  and  cashier  of,  to  which  note  belongs  may  protest 

it  as  notary,  90. 
reports  of  national,  may  be  sworn  to  before  notary,  78. 
itockholder,  director,  cashier,  teller,  clerk  or  other  officer  cannot 
be  notary  in  some  states,  9. 


INDEX.  327 

[References  are  to  Pages.] 

Bankruptcy,  general  letter  of  attorney  in  fact,  160. 

proof  of  unsecured  debt  in,  144. 

proof  of  secured  debt,  145. 

procedure  when  maker  of  negotiable  instrument  becomes  a  bank- 
rupt, 239. 

notice  of  dishonor  given  to  whom,  245. 

notary  may  administer  oaths  and  affirmations  in,  78. 

depositions  allowed  in,  when,  78. 
Banks  and  Notaries,  contents  of.  chapter  on,  293. 

question  of  liability  of  bank  or  notary,  293. 

in  some  states  bank  held  liable,  293. 

in  some  states  notary  held  liable,  293. 
Baptismal    name  of  person,  132. 
"Before  me,"  jurat   should   contain   words,   135. 

See  "Telephone." 
Bill  of  Exchange   may  be  a  promissory   note,  277. 

history  of,  68,  216. 

effect  of  dishonor  of,  223. 

not  an  assignment,  276. 

may  be  drawn  by  telegraph,  290. 

may  be  to  two  or  more  drawees  jointly,  277. 

notary   may  protest  foreign,   under   law-merchant  independently 
of  statute,  68. 

notary  may  protest,  86. 

may  be  protested  by  notary  although  he  is  interested  or  related 
to  the  parties,  90. 
See  "Protest." 

Bill  of  Lading    cannot  be  protested,  288. 

Bill  of  Sale,   acknowledgment   of,  of   any  vessel   may  be   taken  by 
notary  public,  77. 

Blanks,  defects  and,  holder  may  fill,  256. 

Body    of  an  affidavit  consists  of  what,  129. 

of  affidavit  should  be  composed  of  what,  130. 
Bond,  surety  on  his,  liable  when  notary  is  liable  for  malfeasance,  169. 

of  notary  may  be  by  surety  company,  51. 

of  notary  must  be  approved,  9,  51. 

approval  of,  by  county  clerk,  51. 

county  clerk  must  seal  when  he  approves,  48,  51. 

payable  to  whom,  48. 

of  notary  cannot  be  canceled  after  being  filed,  48. 

of  notary,  48,  49. 

sureties',  must  be  approved  by  county  clerk,  19. 

when  notary  liable  on,  who   may  maintain  actioi,  93,  94. 

before  action  on,  is  begun  what  must  he  done,  94. 

what  must  be  shown  before  notary  can  be  held  on,  93. 

of  notary  security  to  state  and  to  all  persons  injured,  93. 

notary  liable  for  breach  of,  93. 

notary  must  give,  to  state,  9,  92. 

in  Missouri  held  to  be,  of  indemnity,  93. 

before  action  can  be  begun  by  individual  against  notary's  bond 
must  have  leave  of  judge  or  court,  94. 

before  action  can  be  begun  on  notary's,  must  file  certified  copy 
of  bond  and  affidavit  of  delinquency,  94. 

judgment  on,  for  one  delinquency  will  not  preclude  same  party 
from  maintaining  another  action,  94. 


323  moEZ. 

[References  are  to  Pages.] 

Bond,  liolds  surety  for  same  length  of  time  notary  is  held  for  hit 
action,  ^. 
surety  on,  cannot  be  held  for  more  than  one  thousand  dollars, 

unless   he    confessed   judgment   in   some   cas«,   95. 
damages  collected  from  surety  cannot  be  greater  than  amount 

of  bond,  94. 
«f  public  officer  security  to  state  and  to  one  injured,  94. 
person   injured   may  maintain   action  on,   of  notary  in  his  own 

name,  94. 
certified  copy  of,  produced  to  judge  or  court  before  beginning 

action  on  notary's  bond,  94. 
of  notary  should  be  sent  to  "secretary  to  the  governor,"  45. 
conditions  in  notary's  bond,  48. 

sent  applicant  by  secretary  of  state  to  be  executed  by  him,  44. 
sent  by  secretary  of  state  must  be  the  one  used,  44. 
notary's,  must  be  filed,  9. 
Books,  when,   may  be   detained  by  notary  in   case  person  testifies 

falsely  before   him,   120. 
Brahmin,  how,  is  sworn,  108. 
"By  Commission,"  depositions  taken  when,  183. 

By  Procuration,  signature,  gives  notice  of  agent's  limited  authority, 
259. 

Canada,  notary  in,  10. 

Cancellation,  unintentional,  burden  of  proof,  276. 

Canon  Law,  notary  under,  2. 

Carriers'  Bills  of  Lading    cannot  be  protested,  289. 

Cases.    For  a  list  of  all  the  cases  quoted  or  referred  to  in  the  book 
see  the  Table  of  Cases,  pages  vii-xxiv. 

Cases  of  Washington  Quoted: 

Anderson  v.  Wallace  Lumber  &  Mfg.  Co.,  148. 

Baker-Boyer  Nat.  Bank  t.  Hughson  and  Reavis,  148. 

BuUene  v.  Garrison,  47,  106. 

Donaldson  v.  Winningham,  184,  186,  191. 

Duggan  V.  Washington  Land  and  Logging  Co.,  82,  84. 

Gates  T.  Brown,  137,  167. 

Griffin  v.  Catlin,  167. 

Hobart  v.  Jones,  186,  205. 

In  re  Hollopeter,  152. 

In  the  Matter  of  the  Petition  of  N.  W.  Bolster,  85,  191,  195 

Jackson  v.  Tatebo,  155. 

Johnson  v.  Irwin,  158. 

Keene  Guaranty  Savings  Bank  v.  Lawrence,  40,  90,  149. 

Kley  V.  Geiger,  157. 

Langert  v.  Ross,  148. 

McLean  v.  Roller,  40,  86,  92. 

Nixon  V.  Post,  40,  90,  149. 

Oregon  R.  &  N.  Co.  v.  Day,  148. 

Phelps  v.  S.  S.  City  of  Panama,  179,  201. 

Richmond  v.  Voorhees  et  al.,  151,  171. 

Roy  and  Roy  v.  Northern  Pacific  B.  R.  Co.,  290. 

Schmitt  v.  Drouet,  93. 

Spokane  &  Idaho  Lumbar  Co.  T.  Loy,  40,  86,  91,  149. 

State  V.  Bailey,   115. 


INDEX.  ^29 

[Seferenees  are  to  Pages.] 

Oases  of  Washington  Quoted — Continued: 

State  T.  Burke,   105. 

State  V.  Cheetham,  105, 

State  V.  Gin  Pong,  112, 

State  V,  Secretary  of  State,  55. 

State  T,  Womack,  41. 

Stetson  and  Post  Mill    Co,  v.  McDonald,  137,  167. 

Sullivam  v.  Treen,  167. 

Tacoma  Grocery   Co.  t.   Draham,   124,   136. 

Vail    T.    Tillman,    148. 

Yarwood  v.  Happy,  290. 
Cashier  in  Bank   cannot  be  notary  in  some  states,  9. 
Certificate   of  consul  to  county  clerk's  signature  and  seal,  63. 

of  consul  to  notary's  signature  and  seal,  61. 

of  authentication  of  notary  must  be  under  seal,  58. 

of  appointment  of  notary  from  secretary  of  state  sufficient  to 
enable  county  clerk  to  certify  to  notary,  58. 

of  secretary  of  state  may  be  attached  to  authenticate,  59. 

of  county  and  consul  should  be  attached  when,  57. 

of  oath  to  be  made  when  state  legislators  or  officers  are  sworn, 
73. 

of  consul,  how  obtained,  61,  62. 

of  county  clerk  may  be  attached  to  authenticate,  59. 

of  notary  to   marine  protest,  66. 

of  authentication  must  be  attached  to  affidarits  to  be  nsed  in 
a  foreign  state,  82. 

of  county  clerk,  how  obtained,  60. 

notary  criminally  liable  for  making  false,  97,  99,  168,  169. 

of  notary  need  not  set  out  that  affiant  has  conscientious  scruples, 
134. 

notary  failed  to  show  in  his  certificate  that  grantor  was  per- 
sonally known  to  him — held  liable  for  damages  to  party  in- 
jured, 168. 

of  authenticity  and  conformity  to  be  added  when,  167. 

of  acknowledgment  should  contain  notary's  seal,  167. 

of  acknowledgment  must  show  what,  166. 

of  acknowledgment,  no  particular  place  for,  166. 

of  acknowledgment  usually  placed  directly  after  the  signature 
of  the  person  acknowledging,  166. 

of  acknowledgment,  when  made  by  agent  or  attorney,  must 
show  that  it  is  on  behalf  of  the  principal,  150. 

of  acknowledgment  should  be  written  or  filled  out  by  notary, 
166. 

of  acknowledgment  should  be  on  instrument  or  attached  to  it,  166. 

of  acknowledgment  of  man  as  attorney  in  fact  for  his  wife,  151. 

when  agent  makes  acknowledgment,  proof  of  his  authority  need 
not   be   in   certificate,   150. 

of  adminif'tration  of  oath,  117. 

when,  shall  be  deemed  complete,  137. 

is  included  when  paper  is  to  be  filed,  104. 

of  notary  who  has  taken  deposition,  201. 

notary's,  of  loss  in  insurance,  302. 

of  nearest  notary  in  case  of,  as  to  fire,  299. 
Chancery    in,  in  England  witnesses  examined  out  of  the  jurisdiction, 

175. 
Oliattel  Mortgage   must  be  acknowledged  and  sworn  to,  164,  165.  -Mt 


i 


330  INDEX. 

[References  are  to  Pages.] 

Check-  will  not  be  accepted  by  state  treasurer  for  fee  from  appli- 
cant for  appointment  as  notary,  44. 

may  be  protested,  231. 

may  be  drawn  by  telegraph,  290. 

must  be  presented  when,  286. 

certification  of,  equivalent  to  what,  286. 

certification  excuses  whom,  286. 

not  an  assignment,  286. 
Child,  when,  under  ten  may  be  sworn,  113,  115. 

Justice  Hadley's  opinion  on  capacity  of  child  of  twelve,  115. 

examples  of  children  examined,  114. 

may  be  sworn  when,  113. 
Chinaman,  how,  is  sworn,  108. 
Christian,  form  of  oath  to  administer  to,  112. 

name  of  person,  132, 
Circuit  Court,  letters  rogatory  addressed  to,  by  foreign  court,  72. 

may  direct  depositions  to  be  taken  in  perpetuam  memoriam  rei,  72. 
Circuit  Court  Clerk,  may  take  oath  before  notary,  70. 
Circuit  Court  Commissioners  abolished   when,   70. 
Citizenship,  oaths  to  prove,  of  applicants  for  mineral  patents  may 

be  taken  by  notary,  75. 
Civil  Law,  seal  not  a  necessity  under,  52. 

oflBce  of  notary  long  known  to,  7. 
Civil  Service,  officer  in,  may  take  oath  before  notary,  72. 
Claimant  to  mining  right  may  make  affidavit  before  notary,  76. 
Claims,   notary   may  take   oath  of  person  prosecuting  claim  against 

department   of   United   States,   77. 
Clerical  Notaries    in  Scotland,  6. 

Clerk    of    notary    cannot    present    for    payment    preliminary    to    pro- 
testing, 224. 

of  notary  cannot  make  protest,  232. 
Clerk  in  Bank    cannot  be  notary  in  some  states,  9. 
Collateral   attack  cannot  be  made  on  acts  of  notaries  de  facto,  106. 
Collector  of  Duties,  importer's  affidavit  to,  may  be  taken  by  notary,  76. 

administers  oath  of  office  to  all  his  subordinates,  76. 

may  take  oath  of  office  before  notary,  76. 
Comity  of  Nations,  7. 
Commercial  World,  notary  public  known  to,  7. 

Commission,   after  delivery  of,  secretary  of  state  to  notify  county 

clerk,  58. 
issued    to    notary    to    perpetuate    testimony    under  §§  1249-1253, 

Rem.  &  Bal.  Code,  186. 
governor   tried   by   mandamus   to    compel   secretary   of   state   to 

issue,   54. 
how  issued,  54. 

notary  must  pay  state  fee  for,  51. 
to  issue  under  letters  rogatory,  72. 
under,    letters   rogatory    carry    instructions    to    be   followed    and 

a  set  of  interrogatories,  176. 
may  be  issued  in  blank  in  some  cases,  179. 
blank,  invalid  in  some  states,  179. 
issued   to    notary   to   take   depositions   in   perpetuam   memoriam 

rei,  72. 


INDEX.  331 

[References  are  to  Pages. 1 

Commission,  papers  to  be  inclosed  with,  in  deposition,  204. 

contents  of,  to  take  depositions  under  §  1240,  Rem.  &  Bal.  Code,  181. 
Commissioner  designated  hy  circuit  court  under  letters  rogatory,  72. 
Commissioners  of  Deeds,  contents  of  chapter  on,  304. 

origin  and  purpose,  304. 

laws   of  Washington  as  to,  304. 

appointment  of,  304. 

term  of  office  of,  304. 

powers  of,  304. 

depositions  may  be  taken  by,  305, 

the  oath  of,  305. 

fee  of,  305. 

seal  of,  form  and  contents,  305. 

officers  of  Washington  living  in  other  states,  305. 
Common  Carriers,  agreement  of,  with  employees  may  be  acknowledged 
before  notary,  79. 

may   verify   reports   to    interstate    commerce    commission    before 
notary,   79. 

Common  Law,  protesting  other  than  foreign  bills  not  a  notarial  act 
at,  68. 

seal  a  necessity  under,  52. 

office  of  notary  long  known  to,  7. 

acknowledgment  not  known  to,  147. 

at,  courts  coerced  litigants  to  allow  other  party  to  take  deposi- 
tions by  consent,  175. 
.  notary  could  not  take  affidavit  at  common  law,  122. 
Community  Property,  husband  and  wife  must  join  in  execution  and 

acknowledgment  of,  169. 
Conditional  Indorsement,  effect  of,  261. 
Conscientious  Scruples,  by  persons  as  to  taking  oath,  109. 

form   of   oath   with   person   having,   117. 

how  to  swear  person  having,  116. 

how  scruples  must  be   shown,   116. 
Consideration  in  bill  of  exchange  presumed,  259. 
Constitutional  Oath,  72. 
Consul,  certificate  of,  as  to  county  clerk's  signature  and  seal,  63. 

certificate  of,  as  to  notary's  signature  and  seal,  61. 

authentication  of  notary's  signature  should  be  obtained  of,  when, 
57. 

charges  fee  for  certificate,  61,  62. 

will  attach  certificate  on  presentation,  61,  62. 
Contempt,   witness   guilty   of,  when,   196. 
Contents  of  book  by  chapters,  vi,  viL 
Contract.       See  "Agreement." 

may    be    sent   by    telegraph,    291. 
Conveyance,  acknowledgment  of,  of  any  vessel  may  be  taken  by  notary 
public,   77. 

of  husband  to  wife  or  wife  to  husband  must  be  acknowledged, 
169. 

grantee  cannot  take  acknowledgment  of  grantor,  87. 

mortgagee  cannot  take  acknowledgment  of  mortgagor,  87. 

trustee  in  deed  of  trust  cannot  take  acknowledgment,  87. 

notary  cannot  take  his  own  acknowledgment,  88. 


332  INDEX. 

[References  are  to  Pages.] 

Conveyance,  notary  beneficially  interested  in,  cannot  take  acknowl- 
edgment to,  88. 
case  of  several  grantees  when  notary  may  take  acknowledgments 

if  he  is  one  of  the  grantees,  88. 
officer  of  corporation  may  take  acknowledgment  when  mortgage 

is   given   to    corporation,    88. 
notary  may  take  acknowledgment  though  he  is  agent  or  attorney 

if  he  is  not  beneficially  interested,  88. 
relationship  will  not  disqualify  notary,  88. 
Copying,  fees  for  copying  any  instrument,   103. 

Copyrights,  notary  may  take  affidavits  in  copyright  applications,  78. 
Corporation,  how  deposition  of,  is  taken,  180. 

acknowledgment  of,  may  be  taken  by  whom,  151. 
who    may   make    affidavit   for  private,    124. 
assignment  or  indorsement  by,  passes  title,  259. 
Correct  Name,  affidavit  as  to,  142. 

County,  notary  a,  officer  from  1854  to  1857  and  from  1875  to  1883,  55. 
County  Auditor    must  record  instruments  when,   147. 
County  Clerk,  records  of  notary  must  be  deposited  in  office  of,  when, 
101. 
signature  of,  certified  to  by  consul,  63. 

may  grant  certificates  to  notary,  certificate  must  be  under  seal,  58. 
certificate  of  appointment  of  notary  filed  with,  so  he  can  certify 

that  the  person  named  therein  is  a  notary,  58. 
will  attach  certificate   on  presentation,  60. 
charges  fee  for  certificate,  60. 

authentication  of  notary's  signature  should  be  obtained  of,  when, 
57,  84. 
Court    must   grant   leave   before   one   can   begin   action   on   notary's 

bond,    94. 
Creditors,  affidavit  of  list  of,  142. 

Criminal   deposition  cannot  be  taken  by  notary  to  be  read  on  criminal 
trial,  189. 
notary  guilty  of  crime  who  certifies  falsely  in  matter  of  claim 

for  pension  or  bounty  land,  77. 
for  notary's  clerk  to  act  in  place  of  notary,  105. 
person  who  personates  a  notary  falsely  and  takes  acknowledgment 

may  be  imprisoned  for  ten  years,  97. 
person  who  personates  a  notary  if  another  is  injured  is  guilty  of  a 

misdemeanor,  97. 
notary  convicted  of  felony  or  malfeasance  forfeits  his  office,  97. 
notary  convicted  of  felony  can  never  hold  another  public  office,  97. 
limitations  as  to  prosecutions,  97. 

notary's  records  protected  from  mutilation  by  others,  98. 
when  deposition,  certificate  and  affidavit  deemed  complete,  137. 
misdemeanor  for  notary  to  charge  fees  greater  than  those  allowed 

by  law  in  land  office  cases,  75. 
word   "officer"  includes  whom,   96. 

notary  must  not  mutilate,  destroy  or  falsify  records,  96. 
statute  as  to  serving  process  on  Sunday,  195. 
notary  must  not  neglect  duty,  97. 

notary  must  not  allow  another  to  perform  his  duties,  97. 
notary  must  not  ask  or  receive  any  gratuity  or  reward  for  violat- 
ing his  official  duty,  97. 
notary  must  not  certify  falsely  to  acknowledgment  or  proof,  97. 


DIDEX.  333 

[References  are  to  Pageg.7 

Criminal,  notary  must  not  make  false  certificate,  97. 
notary  must  not  make  a  false  report,  97. 
notary  must  not  make  false  ship's  protest,  97. 
person  exercising  functions  of  notary  before  having  duly  quali- 
fied is  guilty  of  gross  misdemeanor,  97. 
notary  must  not  take  greater  fee  than  allowed  by  law,  97. 
procedure   if   witness   refuses   to    answer    question   in   deposition 

because    it    will    incriminate    him,    201. 
liability  of  notary  in  connection  with  protests,  etc.,  253. 

Damages,  notary  liable  for,  in  connection  with  certificate  of  acknowl- 
edgment when,  169. 

in  cases  of  negligence  of  notary,  how  computed,  169. 

witness  who  refuses  to  obey  a  subpoena  liable  to,  199. 

for  improper  acts  in  connection  with  protests,  etc.,  253. 

measure  of,  notary  may  be  held  for,  93. 

collected  from  surety  cannot  be  more  than  one  thousand  dol- 
lars, 94. 

Missouri  case  holds,  must  be  sustained  before  notary  can  b« 
held,  93. 

Date,  prima  facie  true,  256. 

effect  of  ante  or  post,  256. 

blank,  holder  may  fill,  256. 

of  expiration  of  notary's  commission  must  be  on  his  seal,  52. 

of  affidavit  not  essential  but  it  should  be  dated,  129. 

good  practice  demands  a,  to  a  jurat,  135. 

would  be  good  rule  to  show  approximate  date  of  marriage  of 
grantors  in  deeds,  166. 

jurat  of  affidavit  should  contain  a,  135. 

in  a  jurat  prima  facie  evidence  of  when  it  was  sworn  to,  135. 

if  no  date  in  a  jurat,  it  could  be  proved  when  the  oath  was  ad- 
ministered, 135. 

of  acknowledgment  should  be  carefully  filled  in,  166. 

De  Bene  Esse,  depositions  may  be  taken  under  what  circumstances,  70. 

depositions,  how  taken,  71. 
De  Facto,  validity  of  acts  of  notaries,  as  to  third  parties,  106. 

examples  of  notaries,  106. 

when  is  a  person  a  notary,  106. 

notary,  47. 

notary  subject  to  fine  or  penalty,  47. 

his  right  to  office  cannot  be  tried  collaterally,  47. 
Deaf  and  Dumb  Persons,  how  to  take  their  acknowledgments,  154. 

when,  person  may  take  oath,  114. 
Deeds,  invalid,  cannot  be  given  effect  by  special  legislation,  173. 

statutory  forms  of  acknowledgment  of  deeds  of  the  different 
states  to  be  found  in  Hubbell's  Legal  Directory,  81,  159. 

must  be  in  writing,  signed  and  acknowledged,  146,  148. 

may  be  sent  by  telegraph,  291. 

homestead,  must  be  executed  and  acknowledged  by  husband  and 
wife,  170. 

in  taking  acknowledgment  to,  if  person  does  not  understand 
notary  should  make  explanation,  154. 

how  parties  should  be  designated,  165. 

must  be  acknowledged  to  be  recorded,  147. 

not  effective  in  some  states  until  acknowledged,  147. 


334  INDEX. 

[References  are  to  Pages. 1 

Deeds,  in  most  states  good  before  acknowledgment  between  tbe  pa:r* 

ties,  147. 

acknowledgment  not  part  of  deed  in  some  states,  147. 
Defenses  against  one  not  a  holder  in  due  course,  264. 
Definitions,  acceptance,  212,  277,  286. 

acceptance  of  negotiable  instrument,  220. 

acceptance  supra  protest,  314. 

acceptor,  212. 

acceptor  supra  protest,  312. 

accommodation  party,  260. 

acknowledgment,   148. 

action,  286. 

ad  diem,  310. 

admiralty  law,  310. 

affiant,  311. 

affidavit,  121. 

affirmation,  69,  111. 

aliunde,  311. 

apostolic  notaries,  314. 

apostolic   See,  314. 

attests,  37. 

attestation,  310. 

au  besoin,  313. 

authentication,  311. 

bachelor,  165. 

bank,  286. 

baptismal  name,  132. 

bearer,  286. 

biennially,  312. 

bill,  286. 

bill  of  exchange,  210,  276. 

bill  of  lading,  311. 

blank  indorsement,  261. 

bona  fide  holder,  317. 

canon  law,  313. 

cei'tifies,  37. 

chambre  des  notaires,  314. 

check,  213,  286. 

Christian  name,  132. 

civil  law,  311. 

collateral,  311. 

commission,  317. 

common  law,  311. 

copy,  291. 

court  of  chancery,  310. 

cross-interrogatories,  310. 

days  of  grace,  313. 

de  bene  esse,  317. 

de  facto,  47,  106. 

delivery,  287. 

deposition,  175. 

determinable  future  time,  254. 

distance,  177. 

doctores  utriusque  iuris,  312. 

domicile,  310. 

draft,  213. 

drawee,  212,  214. 


INDEX.  335 


[Reference!  are  to  Psfei.] 

■)eflnItlons,  drawer,  212,  214. 
duplicate,  291. 
electors,  42. 
elite,  314. 

€t  al.,  312. 

et  als.,  312. 

etude,  314. 

ex  officio,  310. 

ex  parte,  122,  311. 

ex  vi  termini,  311. 

exchange,  313. 

extortion,  100. 

family  name,  132. 

felony,  315, 

filing,  104. 

fixtures,  312. 

folio,  104. 

foreign  bill  of  exchange,  213,  277, 

franking  privilege,  310. 

freeholder,  44. 

functus   officio,   311. 

general  acceptance,  278. 

given  name,  132. 

gross  misdemeanor,  315. 
-    holder,  287. 

holder  in  due  course,  263. 
■     holder  for  value,  260. 

hypothecation,  312. 

1.  e.,  312. 

in  rem,  317. 

indorse,  260, 

indorsement,  212,  215,  287. 

indorser,  213,  214. 

inland  bill  of  exchange,  277,  213. 

issue,  287. 

instrument,  287. 

interrogatories,  310. 

Jones  V.  Smith,  121  Mass.  15,  31tf. 

judicial,  316. 

jurat,  134. 

L.  S.,  53. 

laches,  314, 

law-merchant,  67,  216. 

legal  tender,  318. 

letters  rogatory,  318, 

licencie  en  droit,  314. 

lives,  177. 

maker,  215. 

malfeasance,  315. 

manifest,  315. 

material  alteration,  276. 

maturity,  316. 

ministerial,  316. 

ministerial  act,  41, 

ministerial  office,  41. 

misdemeanor,  315, 

misfeasance,  315, 


i 


336  INDEX. 

[References  are  to  Pages.] 

Definitions,  month,  220, 
narrative  form,  315. 
name  of  man,  132. 
name  of  married  woman,  133. 
name  of  unmarried  woman,  133. 
negotiable,  215, 
negotiate,  260. 
nonfeasance,  315. 
non-negotiable,  216,  315. 
notary  de  facto,  47. 
notary  public,  36,  37. 

"notary"  equivalent  to  "notary  public,"  L 
notice  of  dishonor,  243. 
noting,  234. 
oath,  110. 
officer,  98. 

open  commission,  190. 
papal  notary,  314. 
patronymic,  132. 
payable  on  demand,  255. 
payable  to  order,  256. 
payable  to  bearer,  256. 
payee,  212,  214,  215. 
perjury  in  the  first  degree,  119. 
perjury  in  the  second  degree,  119. 
perpetuam  memoriam  rei,  318. 
person,  287. 

plural  form  of  word  "notary,"  L 
prima  facie,  314. 
primarily  liable,  231,  287. 
promissory  note,  214,  285. 
protest,  37,  216,  229,  234. 
protocol,  318. 
public  officer,  98. 
qualified  acceptance,  278. 
qualified  indorsement,  261. 
reasonable  time,  287. 
re-exchange,  313. 
referee  in  case  of  need,  277. 
respondent,  314. 
restrictive  indorsement,  261. 
Boman  See,  314. 
"ss.,"  127. 
seal,  37,  53. 

secondarily  liable,  231,  287. 
Bight  draft,  213. 
special  indorsement,  261. 
spinster,  165. 

standard  fire  insurance  policy,  316. 
statute  law,  317. 
statute  of  limitations,  317. 
stipulation,  314. 
supra  protest,  314. 
subpoena,  316. 
subpoena  duces  tecum,  316, 
sum  certain,  254. 
surname,  132. 
swear.  111. 


INDEX.  337 

[References  are  to  Pages.]   - 

Definitions,  taking  an  acknowledgment,  37. 

time  draft,  213. 

title,  314. 

unconditional,  254. 

unmarried,  165.  ' 

value,  287. 

venue,  127. 

verification,  316.  .  ■ 

warehouse  receipts,  314. 

written,  287. 
Delegation,  notary  cannot  delegate  his  powers,  105. 
Delinquency   must  be  shown  by  affidavit  to  court  or  judge  before  ac- 
tion can  be  begun  on  notary's  bond,  94. 

judgment  for,  not  a  bar  to  another,  94. 
Delivery,  negotiation  without,  or  authority  invalid,  257. 

what  constitutes,  257. 

Deposition,  commissioner  of  deeds  may  take,  304. 

notary  carries  out  instructions  under  letters  rogatory  the  same  as 
taking  any  other,  176. 

difference  between,  and  affidavit,  175. 

history  of,  174. 

how  taken  in  admiralty,  175. 

how  taken  in  chancery  in  England,  175. 

^low  taken  at  common  law,  175. 

how  taken  at  present  time,  175. 

not  admissible  unless  statutes  complied  with,  175. 

may  be  taken  of  witness  to  a  will,  §  1298,  Eem.  &  Bal.  Code,  188. 

notary    appointed    commissioner   to    perpetuate    testimony    under 
§§  1249-1253,  Eem.  &  Bal.  Code,  187. 

taking   testimony   of   witness  under  probate   procedure,   §   1620, 
Eem.  &  Bal.  Code,  187. 

in  taking,  without  commission  witnesses  must  be  named  in  notice, 
184. 

"on  notice,"  Eem.  &  Bal.  Code,  §  1233,  184. 

either  party  may  begin  taking,  when,  184. 

duty  of  notary  in  matter  of  taking  depositions  "on  notice,"  185. 

when,  may  be  taken  without  commission,  184. 

steps  necessary  in  taking  without  commission,  184. 

notice  to  take,  without  commission,  184. 

of  party  cannot  be  taken  in  United  States  courts  although  permis- 
sible by  the  state  practice,  180. 

subpoenaing  witness  under  commission  same  as  "on  notice,"  183. 

commission  to  take,  should  contain  what,  181. 

how  commission  to  take,  is  issued,  181. 

slight  variation  in  name  of  witness  in  commission  immaterial,  181. 

if  name  in  commission  and  name  of  witness  dissimilar,  will  be  re- 
jected, 181. 

contents  of  chapter  on,  174. 

when,  shall  be  deemed  complete,  137. 

when  perjury  in  taking,  119. 

witness  can  be  compelled  to  attend,  191.  _  ■ 

how  taken,  oral  examination  or  written  interrogatories,  189.  .fl 

difference  between  oral  examination  and  interrogatories,  190. 

under  §  1240,  Eem.  &  Bal.  Code,  taken  how,  189. 

under  8  1233,  Eem.  &  Bal.  Code,  taken  how,  189. 

how  taken  when  parties  are  represented  by  attorneys,  190. 
22 


338  INDEX. 

[R«ferenceB  are  to  Pages.] 

Deposition,  notice  to  nonresident  party  in  taking,  189. 

when  an  open  commission  is  granted,  190. 

notary  cannot  take,  in  contested  election  cases,  188. 

notary  must  see  that  names  of  witnesses  are  set  forth  in  notice 
when,  is  taken  under  §  1233,  Eem.  &  Bal.  Code,  190. 

liability  of  witness  for  not  attending,  199. 

when  notary  liable  criminally  in  taking,  188. 

notary  cannot  take,  under  new  criminal  law  of  1909,  188. 

subpoena  may  be  served  by  telegraph,  195. 

subpoena  may  be  served  by  whom,  how,  193. 

fee  must  be  paid  when  subpoena  is  served,  193. 

how  subpoena  must  be  served,  196. 

discussion  on  question  of  notary's  power  to  compel  witness  to  at- 
tend, 196. 

procedure  when  witness  refuses  to  attend,  198. 

how  taken,  199. 

oath  must  be  publicly  administered,  200. 

should  be  taken  at  the  place  specified  in  notice  or  commission,  199. 

statutory  oath  must  be  administered  before,  is  taken,  200. 

interpreter  may  be  used,  200. 

may  be  taken  down  stenographically,  204. 

may  be  written  out  by  witness,  204. 

papers  to  be  inclosed  in,  204. 

to  whom  sent,  204. 

how  returned,  202. 

should  be  read  to  witness,  202. 

must  be  subscribed  by  v/ituess,  202. 

indorsement  on  envelope  after  papers  in  a,  are  sealed  for  mailing, 
205. 

to  whom  and  how  it  should  be  sent,  205. 

example  of  what  is  not  a,  204. 

exhibits  must  be  attached,  how,  206. 

although  exhibits  are  voluminous  they  must  be  marked,  etc.,  206. 

should  be  taken  at  time  specified  in  notice  or  commission,  199. 

certificate  of  notary  taking,  201. 

may  be  in  narrative  form  or  question  and  answer,  200. 

notary  public  may  take,  38,  86. 

notary  may  take,  in  general  in  United  States,  10. 

ex  parte  marks  difference  between,  and  aflSdavit,  121. 

how,  of  corporation  taken,  180. 

when  notary  is  disqualified  to  take,  180. 

whose,  may  be  taken,  180. 

when,  may  be  taken  to  be  used  in  courts  of  Washington,  177. 

when,  may  be  taken  for,  used  before  justice  of  the  peace,  178. 

testimony  of  witness  must  be  material  and  necessary  in  order  to 
take  his  deposition,  178. 

how  residence  is  determined  in  taking,  177. 

meaning  of  "lives"  and  "sojourning,"  177. 

in  taking,  for  use  in  some  sister  state  notary  should  follow  com- 
mission, 177. 

question  of  compelling  the  attendance  of  witness  discussed,  179. 

for  use  in  United  States  court  may  be  taken  when,  176. 

notary  should  be  sure  there  is  a  good  reason  for  taking,  under  the 
United  States  law,  176. 

for  various  courts,  enumerated,  176. 

for  use  in  foreign  country  generally  obtained  by  letters  rogatory, 
176. 


INDEX.  339 

[Befereneei  are  to  Pages.] 

Deposition,  notary  often  takes,  under  letters  rogatory,  176. 
under  letters  rogatory  notary  returns,  to  whom,  176. 
word  sometimes  means  the  document  and  sometimes  the  narrative 

of  the  witness,  176. 
de  bene  esse  may  be  taken  by  notary  public,  70. 
de  bene  esse,  how  taken,  71. 
no  general  power  to  take,  under  federal  law,  69. 
fee  in  land  office  cases,  75. 

may  be  taken  by  both  parties  before  notary  in  land  office  eases,  74. 
notary  may  take,  when  alien  is  applying  for  naturalization  papers 

and  desires  to  prove  residence,  73. 
may  be  taken  in  land  office  cases  before  notary  when,  74. 
in  patent  office  cases  may  be  taken  by  notary,  77. 
notary  should  follow  forms  sent  him,  67. 
powers  of  notary  to  take,  under  international  law.  57. 
question  as  to  taking,  in  Washington  for  use  in  Vermont,  83. 
power  of  notary  to  take,  purely  statutory,  82. 
statutes  of  state  to  which,  is  to  be  sent  should  be  consulted,  82. 
foreign  statutes  as  to,  in  general,  82. 
for  interstate  commerce  commission  notary  may  take,  79. 
special  cases  of  disqualification  of  the  notary,  89. 
notary  disqualified  to  take  when,  89. 
may  be  taken  for  federal   courts   in  mode  prescribed  by   state 

law,  72. 
witness  can  be  compelled  to  attend,  testify  and  bring  books,  85. 
in  bankruptcy,  when,  78. 

notary  public  may  take,  to  be  used  in  courts  of  United  States,  71. 
in  perpetuam  memoriam  rei,  how  taken  by  notary,  72. 
notary  cannot  take,  when  he  is  interested,  89. 
notary  cannot  take,  when  he  is  a  near  relative  to  any  of  the 
.  parties,  law  partner  of  one  of  the  parties,  nor  stenographer 
of  one  of  the  party's  attorneys,  89. 
Deputy  Marshals  may  take  oath  of  office  before  notary,  70. 
Desert  Land.     See  "Land  Office." 
Diligence  must  be  put  forth  by  notary,  10. 
Director  in  Bank  cannot  be  notary  in  some  states,  9. 
Discbarge  of  instrument,  how  effected,  275. 
of  parties  secondarily  liable,  275. 
of  part  of  a  bill  in  a  set  discharges  whole,  285. 
Discharge  of  Mortgage,   acknowledgment  of,  of  any  vessel  may  be 

taken  by  notary  public,  77. 
Disease,  prevalence  of  a  malignant,  would  excuse  delay  in  notice  of 

dishonor,  246. 
Dishonor,  effect  of,  223. 

Dishonored,  bill,  by  nonacceptance  when,  223. 
Disqualification,  contents  of  chapter  on,  87. 

when  notary  is  disqualified  to  take  acknowledgment,  149. 
to  take  acknowledgments,  affidavits,  depositions,  oaths  and  pro- 
tests, in  general,  87. 
notary  not   disqualified  to  administer  oath  because  he  is  inter- 
ested in  proceeding,  89. 
Distance,  how  is  computed,  177. 

District  Court  Clerk  may  take  oath  before  notary,  70. 


I 


34Q  INDEX. 

[References  are  to  Pages.T 

Drunk.     See  "Intoxicated  Person." 

drunken  person  cannot  be  sworn,  114. 
Duces  Tecum,  witness  may  be  compelled  to  bring  books,  etc.,  194. 

subpoena,  issued  when  books  are  to  be  produced,  191. 
See  "Subpoena." 

Due  Course  presumed,  burden  of  proof,  265. 

Duties,  notary  guilty  of  crime  if  for  reward  he   allows  another  to 
perform  his  duties,  97,  98,  99. 

notary  guilty  of  misdemeanor  if  he  does  not  perform,  98. 

person    performing,    of    notary    before    qualifying    guilty    crimi- 
nally, 99. 

contents  of  chapter  on,  87. 

of  notary,  10. 

criminal  liability  if  neglected  by  notary,  97. 

notary  criminally  liable  if  he  asks  reward  for  violating  official,  97. 

Election  Cases,  notary  cannot  take  deposition  in  contested,  188. 

notary  public  may  take  testimony  in  what,  69. 
Electors,  notaries  must  be,  41. 

women  are  now,  41. 

question  whether  women  were,  so  that  law  of  1907  appointing 
them  notaries  was  constitutional,  42. 

qualifications  of  in  this  state,  41. 
Eligibility  to  Office  of  notary,  41. 

Erasures,  example  of  corrections  made  to  an  affidavit  and  how  notary 
should  note  his  initials,  138,  139. 

in  affidavit  should  be  marked  how,  130. 

should  not  be  made  in  deposition,  200. 
Evidence  of  administration  of  oath,  117. 

notary's  protest,  as  to  what,  236. 

notary's  records,  of  what,  252. 

copies  of  public  records,  when,  252. 
Executor  must  deposit  notary's  records  when,  102. 
Exhibits  must  be  attached  in  depositions,  206. 

how,  should  be  marked,  206. 
Ex  Officio  in  Alabama,  justices  of  the  peace,  10. 

officers  notaries  ex  officio,  8. 

list  of  notaries,  107. 
Ex  Parte  marks  difference  between  depositions  and  affidavits,  121. 
Expiration  of  commission  must  be  on  seal,  52. 
Extortion,  notary  guilty  of,  criminally  liable,  100. 

Facts,  affidavit  must  be  by  one  knowing  the,  122. 
Family  Name,  what  is  a,  132. 

Fee   to   "state   treasurer"   must   be   either  postal   or   express   money 
order,  44. 
for  county  clerk's  certificate,  58. 
of  notary  in  land  office  cases,  75. 
notary  public  who  is  an  officer  in  executive  department  not  to 

take,  of  employees,  69. 
of  notary  taking  depositions  in  land  office   cases  same  as  fees 

allowed  in  state  courts,  74. 
of  county  clerk  for  certificate,  60. 


INDEX.  341 

'[References  are  to  Pages.] 

Pee,  of  secretary  of  state,  60. 

of  consul  for  certificate,  61,  62. 

of  notary  to  the  state,  51. 

for    certificate   of    authentication    from   secretary   of   state,   cost 
of,  46. 

notary   asking  for   or   receiving  unlawful  fee   criminally  liable, 
97,  100. 

allowed  to  notary  public,  103. 

not  entitled  to,  for  unnecessary  act  nor  for  one  unauthorized,  103. 

notary  may  collect  though  services  ineffective  if  fault  is  that  of 
client,  103. 

extortion  to  take  illegal,  103. 

of  ten  dollars  must  be  sent  to  the  "state  treasurer,"  44. 

must  be  paid  or  tendered  witness,  193. 

of  commissioner  of  deeds  to  the  state,  305. 
Female  must  be  eighteen  to  transfer  real  property,  152. 

married  to  man  of  full  age  is  deemed  of  full  age,  152. 
Folio,  definition  of  word,  104. 

Forfeiture  of  office  disqualifies  officer  from  again  holding  office,  100. 
Forged  or  Altered  instrument  offered  by  person  in  evidence  criminally 

liable,  120. 
Forgery,  effect  of,  259. 

Forms: 

I.    Petition  of  applicant  for  appointment  as  notary  public,  46. 
11.     Notary's  bond,  49. 
Notary's  seal,  52. 
Various  seals,  53. 
Commission  of  notary,  54. 
m.     Affidavit  for  use  in  English  courts,  59. 

(1)  Statement  and  jurat  of  notary. 

(2)  Certificate  of  county  clerk. 

(3)  Certificate  of  consul. 

rV.     Power  of  attorney  to  be  used  in  England,  161. 

(1)  Power  of  attorney  signed. 

(2)  Acknowledgment  before  notary. 

(3)  Certificate  of  secretary  of  state  to  notary's  signature. 

(4)  Certificate  of  British  pro-consul  as  to  signature  and 

seal  of  secretary  of  state. 
V.     Marine  note  of  protest  by  master,  64. 
CTI.     Marine  protest,  64. 

Oath  of  postal  service  employee,  69. 
Oarth  of  office  of  marshal  and  deputy  marshal,  70. 
Constitutional  oath,  72. 

Oath  of  state  legislators  and  state  officers,  73. 
Oath,  110. 

Oath  notary  administers,  110. 
Administration  of  oath,  112. 
Affirmation,  112. 

Where  statute  prescribes  form  of  oath  that  form  moit  be 
followed,  116. 
VII.     Oath  for  Christian  testifying,  116. 
VIII.     Oath  for  Christian  deposing,  116. 
IX.     Oath  for  Christian  in  making  affidavit,  116. 

X.     Jurat,  118. 
XI.     Affidavit  of  member  of  partnership,  123. 


342 


INDEX. 


[References  are  to  Pages.] 

Forms — Continued: 

XII.     Affidavit  of  treasurer  of  corporation,  123. 

XIII.  Title  of  affidavit,  one  party  plaintiff  and  one  party  de- 

fendant, 126. 

XIV.  Title  of  affidavit,  several  parties  plaintiff  and  defendant, 

126. 
XV.     Venue  of  affidavit,  127. 
XVI.     Venue  for  use  in  United  States  courts,  129. 
XVII.     Introduction  to  body  of  affidavit;  case  not  set  out,  129. 
XVIII.     Introduction  to  body  of  affidavit;  case  set  out;  title  not 
necessary,  129. 
XIX.     Another  form  of  introduction  to  body  of  affidavit,  130. 

XX.     Signature  of  ignorant  person,  131. 
XXI.     Statement  as  to  why  affiant  did  not  sign,  131. 
XXII.     Legal  name  of  a  man,  132. 
XXIII.     Legal  name  of  a  woman,  133. 
XXIV.     Jurat,  ordinary  form  of,  134. 
XXV.     Jurat,  complete  form  of,  134. 
XXVI.     Affidavit  with  title,  138. 
XXVII.     Affidavit  without  title  and  with  full  certificate,  139. 

Affidavits  showing  how  erasures  and  interlineations  should 
be  treated,  138,  139. 
XXVIII.     Interpreter's  oath,  139. 
XXIX.     Jurat  when  oath  is  taken  through  an  interpreter,  140. 
XXX.     Affidavit  in  attachment.     This  form  explains  why  the  de- 
fendant's agent  is  deponent,  140. 
XXXI.     Affidavit  of  nonmarriage,  141. 
XXXII.     Affidavit  of  identity,  142. 

XXXIII.  Affidavit  and  list  of  creditors,  142. 

XXXIV.  Proof  of  unsecured  debt  in  bankruptcy,  144. 
XXXV.     Proof  of  secured  debt  in  bankruptcy,  145. 

XXXVI.  Certificate  of  acknowledgment  for  an  individual,  156. 

XXXVII.  Certificate  of  acknowledgment  for  a  corporation,  157. 

XXXVIII.  Certificate  of  acknowledgment  of  man  and  wife,  158. 

XXXIX.  Certificate  of  acknowledgment  of  attorney  in  fact,  158. 

XL.  Certificate  of  acknowledgment  as   individual   and  as  at- 
torney in  fact,  159. 

XLI.  Certificate  of  acknowledgment  for  all  states,  159. 

XLII.  General  letter  of  attorney  in  fact  in  bankruptcy,  160. 

XLIII.  Bargain  and  sale  deed,  161. 

XLIV.  Quitclaim  deed,  161. 

XLV.  Warranty  deed,  162.  • 

XLVI.  Community  interest  deed,  162. 

XLVII.  Mortgage  for  real  estate,  163. 

XLVIIL  Chattel  mortgage,  163. 

XLIX.  Descriptions  of  grantors  and  grantees,  165. 

L.  Venue  of  acknowledgment  taken  in  King  county,  166. 

LI.  Venue  of  acknowledgment  taken  in  Spokane  county,  166. 

LII.  Name  of  notary,  166. 

LIII.  Order  of  judge  to  take  testimony,  183. 

LIV.  Notice  of  taking  deposition  under  §  1233,  Eem.  &  Bal.  Code, 
185. 

LV.  Subpoena,  192. 

LVL  Subpoena  duces  tecum,  192. 

Certificate  of  notary,  on  taking  deposition,  201. 
Deposition,  203. 

LVIL  Indorsement  on  sealed  deposition,  205. 


'  INDEX.  343 

[References  are  to  Pages.] 
Forms — Continued: 

LVIII.  Identification  of  exhibits,  206. 

LIX.  Bill  of  exchange,  211. 

LX.  Acceptance  to  bill  of  exchange,  212. 

LXI.  Check,  214. 

LXII.  Promissory  note,  215. 

LXIII.  Computation  of  days  in  determining  date  for  presentation 

of  a  bill  of  exchange,  219. 

LXIV.  Acceptance  of  negotiable  instrument,  222. 

LXV.  Noting  of  a  protest,  234. 

LXVI.  Protest,  237. 

LXVII.  Venue  of  protest  if  bill  is  a  foreign  bill,  238. 

LXVIII.  Waivers  of  protest,  239. 

LXIX.  Acceptances  for  honor,  240. 

LXX.  Notary's  attestation  as  to  payment  for  honor,  242. 

LXXI.  Notice  of  protest,  250. 

LXXII.  Waiver  of  notice  of  dishonor,  251. 

LXXIII.  List  of  records  of  a  protest,  etc.,  252. 

LXXIV.  Notice  to  fire  insurance  company  of  claim  for  loss,  297. 

LXXV.  Proof  of  loss,  298. 

LXXVI.  Notary's  certificate  of  loss,  302. 

LXXVII.  Will,  309. 

Fraud,  limitation  of  actions   against  notary  in  case  of  fraud,  95. 

title  defective  when,  264. 

time  actions  against  notary  will  run  in  cases  of,  95. 
Freeholders,  sureties  to  notary's  bond  must  be,  50. 
Functions  and  Powers  of  a  Notary,  person  criminally  liable  who  is  ap- 
plying for  appointment  but  exercising,  97. 

under  law-merchant,  67. 

under  international  law,  57. 

under  laws  of  other  states,  80. 

under  the  laws  of  Washington,  86. 

contents  of  chapter  on,  57. 

under  federal  statutes,  68. 

considered  under  five  heads,  57. 

<Jentoo,  how,  is  sworn,  108. 

Given  name  of  person,  132. 

Grace,  no  days  of,  269. 

Gross  Misdemeanor,  punishment  for,  98. 

Government  Employees  who  are  notaries  not  to  charge  fee  when,  69. 

Governor  may  remove  notary  when,  104. 

may  appoint  as  many  notaries  as  he  deems  necessary,  42,  44. 

signs  commission  of  notary,  54. 

must  approve  of  seal,  52. 
Grantees,  the  proper  manner  to  designate  parties,  165. 
Grantor,  if  several  each  should  acknowledge  his  signature,  150. 

the  proper  manner  to  designate  parties,  165. 
Grants  and  transfers  of  real  property  must  be  acknowledged  to  be  re- 
corded, 147. 

Handwriting  of  notary  certified  to  by  county  clerk,  60. 
History  of  notary  public,  1. 
of  oaths,  108. 


344  INDEX. 

[References  axe  to  Pages.J 

History,  of  depositions,  174. 
of  "ss.,"  127. 
of  bills  and  notes,  209. 

contents  of  chapter  on,  of  notary  public,  1. 
Holiday,  validity  of  an  acknowledgment  taken  on  a  legal,  153. 
when  last  day  falls  on,  rule,  287. 

See  "Legal  Holidays";  "Presentment  for  Acceptance";  "Present- 
ment for  Payment." 
Homestead,  both  husband  and  wife  must  execute  acknowledgment  of 
deed,  170. 
See  "Land  Office." 
"Honored,"  a  sufficient  acceptance,  222. 
Hubbell's  Legal  Directory  contains  statutory  forms  of  acknowledgment 

of  deeds  of  all  states,  81,  159. 
Husband,  both,  and  wife  must  execute  and  acknowledge  homestead 
deed,  170. 
agreement  of,  with  wife  as  to  property  must  be  acknowledged,  169. , 
conveyance  of,  to  wife  must  be  acknowledged,  169. 
wife  must  join,  in  execution  and  acknowledgment  of  all  community 

property,  169. 
power  of  attorney  to  wife  must  be  acknowledged,  170. 
"Husband  of  Jane  Roe,"  when  expression  used,  165. 
Hjrpothecations  of  any  vessel,  acknowledgment  of  may  be  taken  by 
notary  public,  77. 

"I  Protest  the  Above,"  a  sufficient  refusal  to  acceptance  of  bill  of  ex- 
change, 222. 

Idem  Sonans,  meaning  of  and  example,  184. 

Identification,  requirement  of  name  is  certainty  in  case  of  person  with 
one  name,  133. 
how  exhibits  are  marked  for,  206. 
Identity,   question   as   to   sufficiency   of  introduction  to   establish,  in 
matter  of  taking  an  acknowledgment,  154. 
affidavit  of,  142. 
Importers,  affidavit  of,  to  be  given  collector  may  be  taken  by  notary, 

76. 
Incompatible  Office,  notary  may  hold  two  offices,  42. 
notary  an,  with  another  civil  office  in  Nevada,  43. 
notary  an,  with  county  clerk  in  Texas,  43. 

Indorsement,  purpose  of,  216. 

payable  to  two  or  more,  262. 

effect  of,  to  cashier,  262. 

of  misspelled  name,  262. 

to  different  parties  of  parts  of  a  set,  liability,  285. 

in  representative  capacity,  262. 

presuipiption  of  negotiation  before,  262. 

presumed  made  when  dated,  262. 

striking  out  an,  263. 

transfer  without,  263. 

Infant  may  make  acknowledgment  but  may  revoke  transfer,  151. 
acknowledgment  of  infant  in  open  court  not  binding,  151. 
indorsement  by,  passes  title,  259. 


INDEX.  345 

[References  are  to  Pages.] 

Initials  are  no  part  of  a  name,  132. 

should  not  be  used  in  place  of  a  full  Christian  name,  132. 

if,  are  used  they  should  be  given  correctly,  133. 
Inland  Bill  of  Eschange.     See  "Protest." 

may  be  protested  by  notary,  86,  223, 

not  considered  same  as  foreign  bill  by  law-merchant,  68. 
Insane,  acknowledgment  of,  person  could  be  set  aside  by  showing  the 

fact,  151. 
Insolvent,  procedure  when  maker  becomes  an,  239. 

notice  of  dishonor  given  to  whom,  245. 
"Intelligence  not  Age"  rule  as  to  child,  113. 

"Intelligently  and  Honestly,"  notary  contracts  to  fill  his  office,  92. 
Inspector  of  steam  vessels  may  take  oaths  before  notary,  77. 
Instruments  may  be  sent  by  telegraph,  291. 
Insurance.     See  "Notaries  and  Insuraiice." 
Integrity  must  be  shown  by  notary,  10. 
Interest,  what  is  legal  rate  of,  288. 

Interlineations,  example  of  corrections  made  to  an  affidavit  and  how 
notary  should  note  his  initials,  138,  139, 

in  affidavit  should  be  marked  how,  130. 

should  not  be  made  in  deposition,  200. 
International  Law,  notary  in,  7. 

notaries  of  apostolic  See  officers  whose  authenticity  accepted  all 
the  world  over,  4. 
Interpreter  may  be  used  when,  114. 

form  of  oath  of,  139. 

may  be  used  in  deposition,  200. 

should  be  sworn  and  deposition  should  show  that  fact,  201. 

may  be  used  when  affiant  is  a  foreigner,  130. 

when,  is  used  the  affidavit  should  set  forth  that  fact,  130. 

when,  is  used  affidavit  should  set  forth  fact  that  interpreter  was 
sworn,  130. 
Interrogatories  answered  by  witness  and  written  down  by  officer  in 
taking  deposition,  175. 

deposition  taken  by,  when,  189. 

how,  are  put  in  deposition,  200. 
Interstate  Commerce,  agreements  of  arbitration  under  act  may  be  ac- 
knowledged before  notary,  79. 

reports  of  common  carriers  and  owners  of  railroads  may  be  veri- 
fied before  notary,  79. 

commission  may  have  depositions  taken  by  notary,  79. 
Intoxicated  Person,  acknowledgment  of,  could  be  set  aside  by  showing 

that  he  was  deprived  of  his  understanding,  151. 
Introduction  of  person  wanting  to  make  acknowledgment,  153. 

Jew,  how,  is  sworn,  108. 

"John  Doe,  His  Mark,"  form  of  signature  for  ignorant  person,  131. 

Judge   must    grant    leave   before    one   can   begin    action   on   notary's 
bond,  94. 
may  take  oath  of  office  before  notary,  70. 

Judgment  for  one  delinquency  of  notary  not  a  bar  to  second  proceed- 
ing by  same  party,  94. 


346  INDEX. 

[References  are  to  Pages.] 

Judicial  acknowledgment  is  a,  act  in  some  states,  149. 

See  "Ministerial." 
Judicial  District,  notary  an  officer  of,  from  1857  to  1862,  55. 
Judicial  or  Ministerial  Office,  40. 
Jurat  may  be  in  any  part  of  the  affidavit,  135. 

custom  demands  that  the,  be  directly  after  the  signature  of  affi- 
ant, 134,  135. 

must  contain  words  "before  me"  or  some  equivalent  words,  135. 

should  contain  date,  135. 

of  marine  protest,  66. 

of  marine  note  of  protest,  64. 

to  an  affidavit  to  comply  with  law  of  some  states,  59. 

of  affidavit  to  be  used  in  courts  of  England,  59. 

when  oath  or  acknowledgment  is  taken  through  an  interpreter, 
140. 

must  contain  words  "sworn  to"  or  "affirmed,"  136. 

definition  of,  134. 

what,  should  state,  134. 

date  in  a,  prima  facie  evidence  of  when  it  was  sworn  to,  135. 

prima  facie  evidence  that  the  facts  therein  were  sworn  to,  135. 

importance  of,  as  shown  by  case  of  Tacoma  Grocery  Co.  v. 
Draham,  136. 

is  no  part  of  affidavit  proper,  135. 

good  practice  demands  a  date  to  a,  135. 

if  not  dated  it  could  be  proved  when  oath  was  administered,  135. 
Jurisdiction  of  notary  in  Washington  to  take  acknowledgment,  150. 

secretary  of  state's  certificate  sets  forth  notary's,  63. 

county  clerk's  certificate  sets  forth,  of  notary,  60. 

history  of,  of  notary  in  Washington,  55. 

of  notary  in  other  states,  55. 

of  notary  in  Washington,  55. 
Justices  of  Peace,  notary  may  take  oaths  and  acknowledgments  when, 
may  take  under  laws  of  states  and  territories,  73. 

in  Texas  notaries  are  ex  officio,  107. 

in  Alabama  notaries  are  ex  officio,  10. 

may  administer  oaths  for  use  in  postoffice  department,  69. 

"Kiss  My  Foot,"  sufficient  to  show  refusal  to  accept  bill  of  exchange, 
222. 

Land  Office,  depositions  may  be  taken  by  notary  public,  74, 

affidavits  may  be  taken  before  notary,  75. 

oaths  may  be  administered  by  notary,  75. 

proofs  of  all  kinds  may  be  taken  before  notary,  75. 

entrymen  under  homestead,  pre-emption,  timber  culture,  desert 
land  and  timber  and  stone  acts  may  take  all  oaths,  affidavits 
and  proofs  before  notary,  75. 

fees  when  proof  made  before  notary,  75. 
Law  of  Nations,  how  depositions  are  taken  by  reason  of  the,  174. 
Law-merchant,  increased  importance  of  office  of  notary,  5. 

notary's  powers  under,  67. 

through  bills  of  exchange  negotiable,  68. 

duties  and  powers  under,  now  given  to  notary  by  statute,  86. 

rules  of,  apply  when,  239.  ' 

origin  of,  216. 

history  of,  216. 


INDEX.  347 

[References  are  to  Pages.] 

Legal  Holidays,  what  are,  287. 

Letter-box,  same  as  postoffice,  248. 

Letters  Rogatory,  commission  under,  often  given  to  notary,  176. 

used  in  the  admiralty  law,  174. 

notary  should  follow  instructions  sent  him,  67. 

from  foreign  court  to  circuit  court  of  United  States,  72. 
Liability  of  indorser,  267. 

of  broker,  267. 

no,  if  his  signature  is  not  on  instrument,  258. 

of  witness  for  not  attending  the  taking  of  a  deposition,  199. 
Lien,  verification  of  a,  notice  must  have  seal  attached,  137. 
Limitation  of  Actions,  criminal  actions  may  be  begun  when,  97,  100. 

when  actions  against  notary  or  surety  may  be  begun,  95. 

action  in  usual   case   against  notary  would  be  barred  in  three 
years,  95. 

in  different  cases,  95. 

in  case  of  fraud,  95. 

Limited  Partnership,  each  member  of,  most  acknowledge  in  what  case, 
151. 

List  of  Creditors,  affidavit  of,  under  the  statute,  142. 
Locator  of  mining  claim  may  make  affidavit  before  notary,  76. 
Loss  by  fire,  notice  of  claim,  297. 
proof  of  loss  by  fire,  297. 

Magistrate  may  take  deposition  to  be  read  in  criminal  trial,  188. 
Male  must  be  twenty-one  to  transfer  real  property,  152. 

who  is  a  minor  becomes  of  full  age  on  his  marriage,  152. 
Malfeasance  of  notary  working  for  bank,  294. 

Mandamus,  governor  tried  by,  to  compel  secretary  of  state  to  issue 
commission  to  notary  public,  54. 

Manner  of  taking  depositions  de  bene  esse,  71. 

of  taking  depositions  may  be  same  as  state  law,  72. 

Manner  of  Presentment.     See  "Presentment  for  Payment." 

Manner  of  Protest.     See  "Protest,  etc." 

Marine  Protests,  notary  may  note  and  extend,  10. 

may  be  made  before  notary,  76. 

powers  of  notary  to  take,  under  international  law,  57. 

extended  from  note  of  protest,  64. 

contents  of  protest,  76, 
Marriage,  affidavit  of  non,  141. 

woman's  name  upon  marriage,  133. 

good  rule  to  show  approximate  date  of,  of  grantor's,  in  deeds,  165. 
Married  Woman,  acknowledgment  of,  taken  same  as  of  a  man,  151. 
Marshals  may  take  oath  of  office  before  notary,  70. 
Materiality  of  false  statement  not  considered,  119. 
Maturity  of  bill  accepted  for  honor,  283. 
Military  Service,  officer  in,  may  take  oath  before  notary,  72. 
Mineral  Lands,  proofs  and  testimony  concerning  may  be  taken  before 

notary,  76. 
Mineral  Patents,  oaths  to  prove  citizenship  of  applicants  for,  may  be 
taken  by  notary,  75. 


348  INDEX. 

[References  are  to  Pages.] 

Mining   Claim,   afifidavit   as  to  work  on  Alaska,   may  be   taken  by 
notary,  76. 

Mining  Bight,  affidavit  of  claimant  to,  may  be  made  before  notary,  76. 
Minister  of  Foreign  Country,  authentication  of,  should  be  obtained  to 

signature  of  notary  or  county  clerk,  when,  57. 
Ministerial,  act  of  administering  oath  is,  89,  115. 

notary  is,  officer  in  taking  affidavits,  89. 

acknowledgment  is  a,  act  in  most  states,  149. 

notary  public  is  a,  or  judicial  office,  40. 
Minor  may  be  notary  at  common  law,  9. 

cannot  be  a  notary,  42. 
See  "Female";  "Male." 
Misdemeanor,  punishment  for,  98. 
Misfeasance  of  notary  working  for  bank,  294. 
Mohammedan,  how,  is  sworn,  108. 
Moravians  make  a£^rmation,  109. 

Mortgage  in  case  of  negligence  of  notary  in  certifying  acknowledg- 
ment of,  how  computed,  169. 
form  of,  for  real  estate,  163. 
how  parties  should  be  designated,  165. 

of  any  vessel,  acknowledgment  of  may  be  taken  by  notary  pub- 
lic, 77. 
may  be  sent  by  telegraph,  291. 
must  be  acknowledged  to  be  recorded,  147. 
See  "Chattel  Mortgage";  "Conveyance." 
•"Mrs.  Boe"  is  not  considered  a  name  in  the  law,  133. 
Municipal  Corporation,  who  may  make  affidavit  for,  124. 

Name,  requirement  of,  is  certainty  of  identification,  133. 

how  a  person  should  sign  his,  132. 

error  in,  of  witness  cured  how,  184. 

discussion  of  defect  in,  of  notary,  184. 

of  notary,  how  he  should  sign  it,  166. 

if,  of  witness  and  name  in  commission  to  take  deposition  are  dis- 
similar testimony  will  be  rejected,  181. 

slight  variation  in,  of  witness  in  a  commission  to  take  deposition 
immaterial,  181. 

notary  must  sign  his,  officially  to  affidavits  sworn  to  before 
him,  135. 

indorsement  of  misspelled  name,  262. 

holder  of  bill  of  exchange  may  sue  in  own,  263. 

of  notary  should  always  be  written  the  same,  45. 

of  notary  must  be  on  seal,  52. 

form  to  be  used  on  seal,  52. 

persons  with  one,  134. 

Christian,  132. 

baptismal,  132. 

given,  132. 

surname,  132. 

family  name,  132. 

patronymic,  132. 

initials  are  no  part  of  a,  132. 

initials  should  not  be  used  instead  of  full  Christian  name,  132. 

if  initials  are  used  should  be  given  correctly,  133. 


INDEX.  349 

[References  are  to  Pages.] 

Name,  woman's,  upon  marriage,  133. 

"Mrs.  Eoe"  not  a  name,  133. 

abbreviations  should  not  be  used,  133. 
Narrative,  form,  deposition  may  be  in,  200. 

National  Banks,  reports  of  may  be  sworn  to  before  notary,  78. 

notes  may  be  protested  by  notary,  78. 
Naturalization  Papers,  notary  may   take   depositions  to  prove  resi- 
dence for,  73. 
Naval  Service,  officer  in,  may  take  oath  before  notary,  72. 

"Nearest"  Notary  should  be  found  to  take  proofs  of  any  kind  in  land 
office  cases,  75. 
who  is  the,  299. 
Necessity  of  Protest.     See  "Protest,  etc." 
Need  of  Office  of  notary,  35. 

Negligence,  notary  liable  for  damages  for,  in  connection  with  certifi- 
cate of  acknowledgment,  169.  • 

Negotiability  continues,  263. 

effect  of  provisions  on,  255. 

validity  and,  when  not  affected,  255. 
Negotiable  Instruments,  history  of,  216,  209. 

what  constitutes,  254. 

See    "Protest";    "Presentment    for   Acceptance";    "Presentment 
for  Payment";  "Protest  for  Nonacceptance";  "Protest  for 
Nonpayment";  "Acceptance";  "Payment." 
Negotiable  Instruments  Law,  statute  set  out  in  full,  Bern.  &  Bal.  Code, 

§§  3392-3586,  254-287. 
Negotiation,  how  an  instrument  is  negotiated,  260. 

of  parts  to  different  holders,  285. 
Newspaper,  notice  to  nonresident  party  to  take  deposition  must  be 

published  in,  189. 
No  Protest.     See  "Acceptance  for  Honor." 

Nonacceptance.     See  "Acceptance";  "Presentment  for  Acceptance." 
Notarial  Act  of  Honor.     See  "Payment  for  Honor." 
Notarial  Laws  of  the  territory  and  state  of  Washington,  16. 
Notaries  and  Insurance,  contents  of  chapter  on,  296. 

requirements  in  proof  of  loss,  297.  , 

form  for  proof  of  loss,  297. 

proof  of  loss  must  be  sworn  to,  297. 

when  notary  is  di^ualified  to  make  certificate,  302. 

notary's  certificate,  form  of,  302. 

standard  fire  policy,  296. 

certificate  by  nearest  notary,  301. 
"Notary"  is  equivalent  to  "notary  public,"  36. 
Notary's  Clerk  cannot  act  for  notary,  105. 
Note,  protest  of,  not  a  notarial  act  under  common  law,  68. 

notary  may  protest  under  laws  of  Washington,  68,  86. 

notary  may,  marine  protests,  10. 
See  "Promissory  Note." 
Notice  must  be  given  when  depositions  are  taken  de  bene  esse,  71. 

what,  must  contain,  71. 

no,  needed  under  certain  circumstances,  71. 


350  INDEX. 

[References  are  to  Pages.] 

Notice,  notary  must  keep  record  of  notices  of  protest  sent,  101. 

to  opposing  party,  agent  or  attorney  of  intention  to  take  deposi- 
tions  in   land    office   cases,    74. 

to   be    given   in    case   of   taking   land   office    depositions   before 
notary,  74. 

of  defect  before  full  payment,  264. 

of  defect  what  is,  264. 

to  take  deposition  without  commission  must  be  served  how,  184. 

procedure    if   shorter    notice    wanted    in    taking    depositions    "on 
notice,"  184. 

defect  of  place  in,  waived  by  attendance,  184. 

discussion  of  defect  in  name  of  notary,  184. 

form  of  notice  to  take  deposition  under  §1233,  Rem.  &  Bal.  Code, 
185. 

to  nonresident  party  in  taking  deposition,  189. 
Notice  of  Dishonor,  necessity  of  notice  and  to  whom,  242. 

when  not  required,  242. 

means  what,  243. 

how  notice  must  be  given,  243. 

when  dispensed  with,  243. 

notary  may  give,  243. 

may  be  given  by  whom,  243. 

how  agent  may  give,  243. 

record  of,  must  be  kept  by  notary,  244. 

given  to  whom,  244. 

to  whom  given  on  death,  245. 

to  whom  given  in  case  of  partners,  245. 

in  case  of  joint  parties  not  partners,  245. 

in  case  of  bankruptcy,  insolvency  or  assignment,  245. 

not  given  to  drawer  when,  245. 

not  given  to  indorser  when,  245. 

time,  must  be  sent,  246. 

when    sent   by   mail,   246. 

when  parties  live  in  same  place,  246. 

when  delay  excused,  246. 

if  parties  reside  in  dififerent  countries  separated  by  seas,  247. 

examples  of  conditions  excusing  delay,  246. 

special  cases  as  to  delivery  of,  248. 

where   mail   service   is    broken    up,   248. 

handed  to  letter  carrier,  248. 

deposited  in  private  mailing  box,  248. 

loose  method  of  bank  in  giving,  248. 

manner  of  giving  notice,  248. 

may  be  deposited  in  postoffice,  248. 

place  of  giving  notice,  247. 

when  person  is  sojourning  in  another  place,  247. 

when  dispensed  with,  247. 

meaning  of  reasonable  diligence,  247. 

must  be  given,  270. 

who  may  give,  270. 

by  agent,  270. 

by  holder,  who  benefits  by,  270. 

by  party  entitled,  who  benefits  by,  270. 

agent   may   notify   whom,    271. 

sufficiency  of,  271. 

may  be  written  or  oral,  271. 

to   whom   given,   271. 


INDEX.  351 

[References  are  to  Pages.] 

Notice  of  Dishonor,  when  party  deceased,  271. 
to  one  of  partners,  271. 
joint  parties,  271. 
insolvency,  272. 
may  be  given  when,  272. 
to  parties  living  in  same  place,  272. 
to  parties  living  in  different  places,  272. 
by  mail,  272. 

deposited  in  postoffice,  272. 
must  be  given  to  antecedent  parties,  273. 
where  addressed,   273. 
waiver  of,  273. 

what  parties  bound  by  waiver  of,  273. 
waiver  of  notice  may  be  when,  250. 
binding  upon  whom  when,  250. 
waiver  of,  deemed  waiver  of  what,  250. 
form  of  waiver  of,  251. 
dispensed  with  when,  273. 
excusable  delay  in,  274. 
when  drawer  not  entitled  to,  274. 
when  indorser  not  entitled  to,  274. 

Notice  of  Nonacceptance,  effect  of,  274. 
omission    of,    274. 

"Noting,"  fees  for,  bill  of  exchange  or  note  for  nonacceptance  or  non- 
payment, 103. 
fees  for,  protest,  103. 
when,    must    be    done,    233. 
protest  refers  back  to,  234. 
should  be  done  by  notary,  234. 
reasons  stated  in  a,  234. 

Oath,  punishment  for  false,  119. 

must  be  administered  so  as  to  be  most  binding  on  conscience, 

116,    117. 
one  taking  oath  administered  irregularly  guilty  of  perjury,  116, 

117. 
includes   "aflSrmation"   and    "swear,"   117. 
may  be  administered  by  notary  anywhere  in  the  state,  115. 
to  be  used  otherwise  than  in  the   courts  of  Washington  should 

have    in    addition    to   words    "notary    public,"    his   place    of 

residence  and  his  seal,  118, 
form  of,  must  vary,  116. 

form  prescribed  by  statute  must  be  followed,  116. 
who  may  be  sworn,  113. 

examples  of  children  examined  to  be  put  under,  113,  114. 
administration  of,  what  constitutes,  112. 
mode   of   administering,   109. 

must  be  most  binding  on  the  witness'  conscience,  109. 
administered  to  a  Christian,  112. 
notary  cannot   administer  to   himself,   115. 
when,  may  be  administered  to  a  deaf  and  dumb  person,  114. 
to  be  used  in  courts  of  Washington  does  not  need  seal,  118. 
not   necessary   to    explain   when,    is   administered   in   a  peculiar 

manner,  118. 
two  oaths  may  be  administered  to  some,  113. 
not  to  be  administered  over  telephone,  113. 


f 


352  INDEX. 

[References  are  to  Pages.]  « 

Oath,  power  of  notary  to  administer,  except  in  commercial  matters 

purely   statutory,   83. 
presumption    as    to    whether   one    state   will    presume    notary   of 

another   state   has   power  to  administer,   83. 
custom  and  usage  gives  notary  power  to  administer,  in  commercial 

affairs,   83. 
who  may  take,  115. 
not  taken  by  whom,  109. 

when  not  necessary  for  seal  to  be  attached,  135. 
contents    of    chapter    on,    108. 
administering,  purely  ministerial,  89. 
word   "oath"  includes   affirmation,   78. 
may  be  administered  to  whom,  113. 
form  of  oath  of  interpreter,  139. 

circumstances  must  show  that,  was  taken  in  affidavit,  124. 
affiant  must  take,  124. 
form   of   attestation,    124. 
when  perjury  for  swearing  to  false,  119. 
form  of  certificate  to   be   attached  to   an,   118. 
false  oath  is  perjury,  112. 

those  who  decline  taking  an  oath  may  affirm,  111. 
for  those  who  have  a  peculiar  mode  of  swearing,  111. 
two  oaths  for  some,  111. 
word,  includes  what.  111. 
explanation   of,   110. 
history  of,  108. 
first  oath,  108. 

cannot  be  administered  by  notary's  clerk,  105. 
in   deposition,   must    be    publicly   administered,   200. 
statutory,  must  be  strictly  followed  in  deposition,  200. 
must   be   administered   before   deposition   is   taken,   200. 
notary  public  may  administer,  38. 

notary  may  administer,  in  general  in  United  States,  10. 
to  judges  may  be   administered  by  notary,   70. 
where  it  may  be  administered  by  notary,  55. 
to  county  clerks   may  be   administered  by  notary,   70. 
of  office   may  be  taken  before  notary  by  marshals   and  deputy 

marshals,   70. 
of    office    to    one    in    postal    service    may    be    administered    by 

notary,    69. 
to  be  used  in  postoffice  department  may  be  taken  by  notary,  (59. 
of  office  not  to  be  charged  for  when,  69. 

of  office  of  notary  printed  on  the  bond  sent  the  applicant,  44. 
complied  with  by  affirmation  under  federal  statutes,  69. 
no  general  power  to  administer,  under  federal  law,  69. 
of  applicants  for  mineral  patents  may  be  administered  by  notary, 

75. 
to  state  legislators   and   state  officers  may  be  administered  by 

notary,  73. 
to  West  Point  cadets  may  be  administered  by  notary,  73. 
of  inspectors  of  steam  vessels  may  be  taken  before  notary,  77. 
of  applicant  for  patent  may  be  taken  by  notary,  77. 
powers  of  notary  to  administer,  under  international  law,  57. 
false  certificate  criminal,  80. 
of  common  carrier  and  owners  of  railroads  may  be  administered 

by  notary,  79. 
of  notary,  51. 


INDEX.  353 

[Reference!  are  to  Pages.] 

Oath,  administering,  is  purely  ministerial,  89. 

attorney  may  administer,  to  his  client,  89. 

of  oiBcer  of  national  bank  may  be  taken  by  notary,  78. 

of  commissioner  of  deeds,  305. 

how,   of   commissioner   of  deed*  must  be  filed,   305. 

of  office  of  collector  of  duties  may  be  administered  by  notary,  78. 

may  be  administered  by  notary  to  any  person  except  President,  72. 

fees  for  administering,  103. 

commissioner  of  deeds  may  take,  305. 

of  office  of  notary,  47. 

of  office  must  be  subscribed,  47. 

notary   disqualified   to    administer   when,   89. 

notary  may  administer,  86. 

under  federal   statutes  must  have  seal,  52. 

affirmation  same  as,   78. 

notary  may  administer,  in  bankruptcy  matters,  78. 
See   "Affirmations." 
Oath  of  Allegiance,  when  giren,  77. 
Office,  notary  public  not  incompatible  with  other  offices,  42,  43. 

term  of  notary  public,  47. 
Office  Building    of   applicant  for  appointment   as  notary  should  be 

given  in  bond,  45. 
Office  of  Notary,  judicial  or  ministerial,  40. 

a  public  office,  38. 
Officer,  unauthorized  or  invalid  act  of,  cannot  be  legalized  by  special 
legislation,   173. 

person  must  be  citizen  of  United  States  and  a  qualified  elector 
to   be   a  public,   42. 

state,  may  take  oath  of  office  before  notary,  73. 

may   take    oath   before   notary,   72. 

include  whom,  96. 
Open  Conunission,  what  is  an,  190. 
Order    of  judge  to  take  deposition,  183. 
Origin    of  notary  public,  1,  7. 

of  promissory  notes,  68. 

Papers    may  be  detained  by  notary  in  case  person  testifies  falsely 

before  him,  120. 
Parish  Clergyman  in  Scotland  still  has  notarial  powers,  6. 
Partnership,  law  of  1869  as  to  forming  and  steps  thereto,  152. 

one  of  partners   may  acknowledge  instrument  running  in  name 

of,  150. 
cannot   make   affidavit,   123,   131. 
Party,  same,  may  proceed  against  notary  or  his  sureties  more  than 
once,  94. 
deposition  of,  to  suit  may  be  taken,  180. 
either  may  begin  taking  deposition  when,  184. 
how  they  should  be  designated,  165. 

deposition   of,  cannot  be   taken  in   United  States  courts  though 
permissible  by  state  practice,   180. 
Pass  on  Railroad,  not  to  be  accepted  or  used  by  notary,  39. 
Patent,  notary  may  take  affidavit  and  depositions  in  cases  in  patent 
office,  77. 
notary  may  take  oath  of  applicant  for,  77. 
23 


354  INDEX. 

[References  are  to  Pages.] 

Fasrment,  when   a   part   not   delivered,   285. 
when  money  must  be  accepted,  228. 
when  the   currency   is   designated,   229. 
when  bill  is  in  set,  229. 

effect  of  payment  of  one  part  of  a  bill,  229. 
holder  in  due  course,  riglit  to,  2G4. 
See   "Presentment   for   Payment." 

Payment  for  Honor   in,  payor  entitled  to  bill  and  protest,  284. 

declaration  necessary,   284. 

preference  as  to  payment,  284. 

payor  for  honor  subrogated,  284. 

who  may  make,  when,  241. 

must    have    notary's   attestation,   242. 

must  be  founded  on  what,  242. 

form  of  notary's  attestation,  242. 

preference  of  parties   offering  payment,  242. 
See   "Acceptance   for   Honor." 
Perjury,   person   taking  oath   administered   in    an   irregular   manner 
guilty  of,  116,  117,   119. 

person  guilty  of,  who  makes  false  oaths,  119. 

if,  can  be  assigned  on  paper  it  is  sufficient  as  an  affidavit,  122. 

no  defense  in  case  of,  whether  false  statement  material,  119. 

to    make    false    affirmation,    112. 

assignable  where  mark  is  made,  131. 
Perpetuate  Testimony,  notary  appointed  commissioner  to,  186. 
Person  before  beginning  action  on  notary's  bond  must  produce  cer- 
tified copy  of  bond  and  affidavit,  94. 

who  maliciously  destroys  records  guilty  of  gross  misdemeanor,  100. 

claiming  to  be  notary  and  acting  as  such  criminal,  99,  100. 

injured  may  maintain  action  on  notary's  bond,  93. 

affected  by  law-merchant,  67. 

not  a  Christian  sworn,  how,  112. 

who  executed  the  instrument  should  acknowledge  it,  150. 

present  in  court  may  be  made  to  testify,  194. 

injured   by   neglect  of   notary  to   deposit   his   records   may   sue 
notary,  102. 
Personating   a  notary  criminal,  99. 

Petition,  contents  of,  to  compel  witness  to  attend,  196. 

for    appointment    as   notary    public    sent    to    "secretary   to    the 
governor,"   44. 

to  governor  for  appointment  as  notary  public  must  be  signed  in 
ink,   44. 

of  twenty  freeholders,  notary  appointed  on,  42. 
Place    of  protest,  233. 

deposition  should  be  taken  at  the,  specified  in  notice   or  com- 
mission,  199. 

of  certificate  of  acknowledgment  usually  directly  after  signature 
of  person  acknowledging,  166. 

Place  of  Presentment.  See  "Presentment  for  Acceptance";  "Present- 
ment for  Payment." 

Plat    must  be  acknowledged,  170. 

Pleading,  not  to  be  considered  improperly  verified  if  sworn  to  before 
attorney  by  his  client,  86,  89. 

PoetofKce,   notary  may   administer   oaths  for,   department,   69. 


INDEX.  355 

[Beferences  are  to  Pages.] 

Postal  Sejrvlc©,   oath   of  office   of   one  in,   may  be   administered  by 
notary,  69. 

Power  of  Attorney,  must  be  acknowledged  to  be  recorded.  147. 

dealing  with  registered  lands  must  be  acknowledged,  170. 

may  be  sent  by  telegraph  for  record,  170. 

between  husband  and  wife  must  be  acknowledged,  169. 
Powers  of  notary  certified  to  by  secretary  of  state,  63. 

county  clerk's   certificate   sets   forth,  of  notary,   60. 
Powers  and  Duties    of  commissioners  of  deeds,  304. 

considered  under  five  heads,  57. 
Pre-emption.     See  "Land   Office." 
"Presented,"  a  sufficient  acceptance,  222. 
Presentment,  fees  for  making,  of  bill  of  exchange,  etc.,  103. 

for  acceptance  or  payment  of  a  bill  of  exchange  must  be  by  notary 
himself,  105. 

Chancellor  Kent's  opinion  as  to  duty  of  notary  in  case  of,  105. 

Presentment  for  Acceptance,  when  bill  is  dishonored  on,  it  must  be 
protested,   223. 
facts  which  affect  question  of  reasonable  time  in,  218. 
what  is  a  reasonable  hour,  218. 
must  be  on  business  day,  218. 
may  be  on  holiday  when,  218. 
when,  is  excused,  219. 

how  time  in  days  or  months  is  computed,  219. 
when  two  dates  are  inconsistent,  220. 
meaning  of   word   "month,"   220. 
rule  as  to  reasonable  time,  219. 
who    may    present,    217. 
if  holder  is  agent,  217. 
made  by  notary  sometimes,  217. 
notary  liable   in,   when,   217. 
agent's  authority  for,  ends  when,  217. 
when    there    is    an    acceptance,    221. 
acceptance  must  be  general,  221. 
must  be  made  to  whom,  217. 
if  drawee  is  dead,  bankrupt  or  insolvent,  218. 
to  one  of  partnership,  218. 
excused  when,  222. 
time  allowed  drawee,  221. 

if  drawee  destroys  the  bill  or  refuses  to  return  the  same,  221. 
time,  should  be  made,  218. 
what  is  a  reasonable  time,  219. 
what  drawee  agrees  to  do  in  an  acceptance,  220. 
what  drawee  must  agree  on,  220. 
drawee    may    demand    that   the    acceptance   be   written   on   the 

instrument,  220. 
if  acceptance  is  written  on  another  paper,  220. 
when  necessary  216. 

why  bill  payable  at  sight  must  be  presented,  217. 
how,  should  be  made,  220. 
when  showing  bill  unnecessary,  220. 
made  how  many  times,  220. 
how  many  parts  of  a  set  presented,  220. 
Presentment  for  Payment,  to  acceptor  for  honor,  283. 
delay  excused  when,  283. 


356  INDEX. 

[References  are  to  Pages.] 

Presentment  for  Payment,  necessary  when,  283. 

on  Sundays  and  holidays,  269. 

computation   of   time,   270. 

■when  payable  at  a  bank,  270. 

when  necessary,  267. 

time  of,  267. 

by  whom,  268. 

place  of,  268. 

exhibition  of  instrument,  268. 

at  bank,  time  of,  268. 

to  personal  representative,  268. 

to  one  of  partners,  268. 

to  all  parties  when   necessary,  268. 

unnecessary  when,  268. 

excusable  delay,  what  is,  269. 

dishonored   when,   269. 

must  be  at  a  proper  place,  227. 

when   excused,  227. 

what  is  presumed  as  to  place  of,  227. 

what  must  be  done  to  find  the  maker  or  acceptor,  227. 

when  note  is  in  bank  notary  need  not  have  it  in  his  possession, 
228. 

manner   of   presentment,   228. 

how  presented   if  instrument  is  lost  or  destroyed,  228. 

how  to  count  the  days,  226. 

statute  must  be  closely  followed,  226. 

what  is  a  reasonable  time,  227. 

made  to  whom,  225. 

how  made  in  case  of  death  of  one  liable,  225. 

how  made  in  case  of  partnership,  225. 

how  made  in  case  of  several  persons  not  partners,  225. 

how  made  in  case  payable  at  a  bank,  225. 

should   be   made   when,   225. 

when  necessary,  223,  224. 

not  required  to  charge  drawer  when,  224. 

who  may  present,  224. 

must  be  made  by  notary  when,  224. 

cannot  be  made  by  his  clerk,  224. 

must  be  made  on  what  day,  225. 

must  be  made  at  what  hour,  226. 

must  be  made  at  a  bank  when,  226. 

when,  is  excused,  226. 

when  day  of  payment  falls  on  Sunday  or  a  holiday,  226. 

when  Saturday  is  day  of  payment,  226. 
See  "Payment." 
Presumption    as   to   administration   of   oath,   118. 

"Prima  Facie,"  date  in  a  jurat  is,  evidence  of  when  it  was  sworn  to, 

135. 
Principal,   when,   docs   not   make   affidavit  some  good  reason   should 

be  shown,  123. 
Prior  Party,  transfer  back  to,  263. 
Private  Letter-box,  not  same  as  postoffice,  248. 
Privy  Examination  of  Wife  not  made  now  in  Washington,  41. 
Probate,  taking  deposition  under  procedure,  §  1620,  Bem.  &  Bal.  Code, 

187. 


INDEX.  357 

[Reference!  ue  to  Pagea.J 

Promissory  Note,    See  "Note." 

history  of,  209. 

may  be  protested,  223. 

may  be  drawn  by  telegraph,  290. 
Proof  of  Loss,  form  for,  298. 
Protest,  necessary  on  foreign  bills,  281,  283. 

what  must  specify,  281. 

when  must  be  made,  281. 

place  of,  281. 

for  what,  282. 

effect  of  insolvency  on,  282. 

excused  when,  282. 

of  lost  bill,  282. 

required  only  on  foreign  bills,  274. 

waiver  of,  238. 

when  protest  is  considered  waived,  238. 

what  waiver  of  protest  is  taken  to  mean,  238. 

requirements  of  a,  235. 

steps  in  protest,  234. 

time  of  protest,  233. 

delay  in  noting  or,  excused  when,  233. 

when  time  falls  on  Sunday  or  a  holiday,  233. 

when  delay  ceases  to  operate,  233. 

protest   must   be  made   where,   233. 

notary  may  protest  although  he  has  an  interest  in  the  paper,  232. 

special  cases  of  protest,  232. 

should  be  made  by  notary  in  person,  232. 

purpose  of,  231. 

necessity  of  protest,  230. 

not  necessary  in  case  of  inland  bill  or  note,  230. 

check  must  be  protested,  231. 

effect  if  bill  is  not  protested,  231. 

when  bill  is  lost  or  destroyed,  231. 

what  may  be  protested,  223. 

foreign  dishonored  bill  must  be  protested,  223. 

effect  if  bill  is  not  protested,  223. 

inland  bill  may  be  protested,  223. 

powers  and  duties  of  notary  in  matters  of,  210. 

history  of  bills  and  notes,  209. 

question  as  to  powers  of  notary's  clerk  in  case  of  protest,  lOS. 

contents  of  chapter  on,  207. 

notary  may,  foreign  bills  under  law-merchant,  68. 

of  other  than  foreign  bills  not  a  notarial  act  at  common  law,  68. 

notary  may  note  and  extend  marine,  10. 

notary  may  present  foreign  bills  of  exchange  and  protest  them, 
10. 

same  over  all  the  world,  67. 

of  national  bank  notes,  how  made,  78. 

marine,  may  be  taken  by  notary,  76. 

of   bill   of   exchange   does   not   need   to   be   authenticated  to  b« 
used  under  international  law,  57. 

powers  of  notary  to  take  marine,  under  international  law,  57. 

notary  may  protest  bills  and  notes  although  he  is  interested  or 
related   to  some  party,  90. 

of  national  bank  notes  may  be  made  by  notary,  78. 

false  marine,  by  notary  criminal,  99. 

fees  for,  103. 


35S  INDE^. 

[Referencei  are  to  Pages.] 

Protest,  fees  for  registering,  103. 

notary   criminally   liable   for   making  false  ship's,  97. 

jiotary  disqualified  to  take  when,  90. 

notary  must  keep  records  of,  101. 

notary  may  protest,  38,  86,  232,  281. 

what  law  governs,  230. 

how  made,  230. 

effect  of  noncompliance  with  law,  230. 

must  be  made  according  to  Washington  statute  in  case  of  foreign 
bills,  84. 
Protest  for  Better  Security,  when  allowed,  239. 

origin   of,   239. 
Protest  for  Nonacceptance  or  Nonpayment,  generally  by  notary,  229. 

must  be  under  seal,  229. 

strictly  does  not  include  notice  of  dishonor,  230. 
Protest  for  Nonpayment,  foreign  bill  must  be  protested,  229. 

effect  if  foreign  bill  is  not  protested,  229. 

inland  bill  may  be  protested,  229. 

bill  may  be  protested  twice,  229. 
Public  Documents,   notary's  records  become,   252. 
Public  Officer   includes  whom,  96. 

notary  is,  38. 

person  convicted  of  crime  cannot  be  a,  97. 

includes  whom,  96. 

guilty  of  felony  forfeits  his  office  and  if  convicted  cannot  again 
hold  public  office,  100. 

bond  of,  security  to  state  and  to  one  injured,  94. 
Publication   of  notice  to  nonresident  party  to  take  deposition,  189. 
Punishment  for  false  oaths,  119. 

for  misdemeanor  and  gross  misdemeanor,  98. 
Purchaser  of  property,  how  protected,  147. 
PuriMse  of  protest,  231. 

of  chapter  on  wills,  307. 

of  office  of  notary,  35. 

Quakers    make  affirmation,  109. 

Qualifications  for  Appointment  to  office  of  notary,  41. 

Qualified  Acceptance.     See   "Acceptance." 

Bailroad,   owners    may   verify   reports   to   interstate   commerce   com- 
mission before   notary,   79. 

not  to  grant  passes  or  sell  ticket*  at  a  discount  to  notaries,  39. 
Keajsonable  Diligence,  meaning  of,  in  notices  of  dishonor,  247. 

all    that    is   necessary   when,    224. 

Seasonable  Hour,  what  is  a,  for  presentment  for  acceptance  of  bin  of 
exchange,  218. 

Beafonable  Time,  what  is  a,  219. 

Secord    of  notary  as  to  protests,  etc.,  251. 

of  his  notices  of  dishonor  must  be  kept  by  notary,  244. 

notary  must  keep,  of  his  protest  notices,  etc.,  236. 

person  offering  lorged  or  altered,  criminally  liable,  120. 

power  of  attorney  may  be  sent  by  telegraph  for,  170. 

of  notary  are  public  records,  101. 


INDEX.  359 

[Refersncea  are  to  Pages.] 

Becord  of  notary  not  treated  as  official  may  be  used  to  refresh  notary's 
memory,  103. 

fees  for  copying  record,  103. 

must  not  be  mutilated,  96,  98. 

notary's,  protected  from  multilation  by  others  by  criminal  stat- 
ute, 98. 

of  notary  protected  by  criminal  statute,  100. 

as  evidence  of  notary's  acts,  102. 

of  notary  must  be  deposited  in  county  clerk's  office  upon  death, 
resignation  or  removal,  101. 

notary  making  false  certificate  which  may  be  made  of,  criminally 
liable,    100. 

to  be  made  of  oath  to  state  legislators  or  officers,  73. 

bond  must  be  filed  of,  9. 

Beferee  in  Case  of  Need,  who  is,  277. 
who   names,   251. 

option  of  whom  to  go  to  the,  251. 
See  "Acceptance  for  Honor." 
Registered  Land,  power  of  attorney  dealing  with,  must  be  acknowl- 
edged, 170. 
Registration,  to  be  entitled  to,  deed  must  be  acknowledged,  147. 
Releases  of  Mortgages   must  be  acknowledged  to  be   recorded,  147. 
Religion,   person   cannot   be   disqualified   as   a  witness   by   reason   of 
his,  110. 
no  qualifications  as  to,  to  be  required  for  public  office   or  for 
witness,   110. 

Religious  Scruples  by  different  sects  as  to  taking  oaths,  109. 

Removal,  when  notary  may  be  removed,   104. 

Renegotiation,   by   secondary    party,    275. 

Renunciation  of  Rights,  by  holder,  275. 

Report,  notary  criminally  liable  for  making  false,  97,  99. 

Residence,  how  determined  in  taking  deposition,  177. 

of    notary    should    be    added    after    notary's    name    in    affidavit 
when,  135. 
Restrictive  Indorsement,  rights  of  restrictive  indorsee,  261. 

Saturday.     See  "Presentment  for  Acceptance";  'Tresentment  for  Pay- 
ment." 
Seal,  not  necessary  to  attach,  in  case  the  oath  is  to  be  used  in  Wash- 
ington,   118. 

private,  abolished  since  1888,  153. 

agreement  to  convey  lands  needs  no,  148. 

of  notary  must  be  affixed,  when,  135. 

notary  should  attach  his,  to  certificate  of  acknowledgment,  167. 

sufficiency   of,   how   determined,   53. 

different  kinds  of,  53. 

scroll,  53. 

printed  square,  53, 

letters,  "L.  S.,"  53. 

impression  made  on  wax  or  other  adhesive  substance,  S3. 

word  "sral,"  53. 

necessary  on,  in  Washington,  53. 

must  contain  date  of  expiration  of  commission,  53. 

requisites  of,  determined  by  state  statutes,  53. 


360  INDEX. 

[Itefer»nces  are  to  Pages.] 

Seal,  law  as  to,  mandatory  in  Washington,  53. 

when,  must  be  affixed  to  affidavit,  135. 

must  be  attached  to  verification  of  a  lien  notice,  137, 

notary's  clerk  has  no  right  to  attach,  105. 

must  be  affixed  to  protest,  235. 

of  notary  not  necessary  on  notice  of  dishonor,  250. 

how  described  in  telegraphic  copy,  291. 

of  commissioner  of  deeds,  305. 

may  be  affixed  how,  252. 

must   be   procured  by   applicant  for  appointment  as  notary,  45. 

contents  of  notary's  seal,  45. 

of  state  affixed  to  certificate  of  secretary  of  state,  63. 

of  notary  certified  to  by  consul,  61. 

great,  of  state  to  be  affixed  to  notary's  commission,  54. 

of  notary  should  be  attached  when  oaths  and  acknowledgments 
are  taken  under  federal  law,  73. 

notary  must  procure,  52. 

of  notary  to  marine  protest,  66. 

of  notary  must  be  approved  by  governor,  51. 

of  officer  taking  notary's  oath  of  office  must  be  placed  on  instru- 
ment, 51. 

must  be  attached  to  instruments  executed  under  federal  statutes, 
52. 

of  notary  should  be  affixed  to  all  instruments  taken  under  federal 
laws,  73. 

of  notary  must  be  placed  on  bond  for  approval,  51,  52. 

county  clerk's,  used  inadvertently  not  sufficient,  53. 

under  common  law  necessary,  52. 

under  civil  law  not  necessary,  52. 

statutes  in  most  states  require,  52. 

in  Washington  must  be  engraved  how,  52. 

impression  of,  must  be  filed  in  office  of  secretary  of  state,  52. 

fees  for  attaching,  103. 

notary  must  have  in  most  states,  9. 

need  not   always  be   attached,  9. 

acts  of  foreign  notary  must  have,  attached,  10. 

applicant's  bond  should  have  seal  of  officer  taking  the  acknowl- 
edgment, 45. 

proposed   seal   of  applicant  for  appointment  as  notary  must  be 
placed  on  bond,  45. 
Secretary  of  State  may  grant  certificates  to  notary,  certificate  must 
be  under  seal,  58. 

must   make   certificate   of   appointment   of   notary   and   send  to 
county  clerk,  58, 

signs  commission  of  notary,  54. 

charges  fee  for  certificate,  60. 

with,  must  be  filed  impression  of  seal,  52. 

may  certify  to  official  status  of  notary,  46. 

certificate   of,   should  be   attached  when,   84. 

authentication  of  notary's  signature  should  be  obtained  of,  when, 
57. 
"Seen,''  a  sufficient  acceptance  to  bill  of  exchange,  222. 
Separatists  make  affirmation,  109. 
Set,  when,  constitutes  one  bill,  285. 

Sickness    of  wife  no  excuse  for  holder  for  delay  in  notice  of  dis- 
honor, 246. 


INDEX.  361 

[References  are  to  Pages.] 

Signature  to  show  importance  of,  of  affiant,  Tacoma  Grocery  Co.  v. 
Draham  quoted,  136. 

notary's  duty  as  to  signature  in  an  acknowledgment^  155. 

of  person  unable  to  write,  130. 

where,   to   affidavit   should  be,   130. 

affidavit  with  no,  131. 

if  several  signers  each  should  acknowledge  his,  if  acknowledgment 
is  necessary,  150. 

deed  must  be  signed,  147. 

of  foreigner  to  an  affidavit  written  in  English  should  be  in  what 
language,  132. 

blank,  by  one  not  a  party,  266. 

will   must   be   signed   by  testator,  308. 

of  county  clerk  certified  to  by  consul,  63. 

of  notary  certified  to   by   consul,   61, 

of  notary  should  be  authenticated  when,  84. 

of  person  unable  to  write  by  reason  of  disease  or  natural  infirm- 
ities, 131. 

if  person  unable  to  sign  notary  should  note  the  fact,  131. 
Signer  considered  an  indorser  when,  265. 
Skill  must  be  shown  by  notary,  10. 
"So  Help  me  God"  omitted  when,  70. 
Special  Indorsement  Payable  to  Bearer,  effect  of,  262. 
Special  Legislation,  legislature  is  prohibited  from  enacting,  173. 
"Spinster,"  when  word  is  used,  165. 
State,  one,  foreign  to  every  other  state  when,  213. 

bond  of  notary  security  to,  93. 
State  Law  may  be  followed  in  taking  depositions  for  use  in  United 

States  couits,  72. 
State  Lej^islators  may  take  oath  of  office  before  notary,  73. 
State  Of^cer  must  be  citizen  of  United  States  and  a  qualified  elector, 
42. 

notary  a,  from  1862  to  1875  and  since  1883,  55. 

may  take  oath  of  office  before  notary,  73. 
State  Treasurer,  notary  must  pay  fee  to,  51. 

receipt  of,  must  be  filed  with  bond,  etc.,  51. 
Statements,  sworn  to  by  affiant  make  body  of  the  affidavit,  129. 
Statute  of  Limitations,  no  redress  in  a  case  because  one  injured  had 

allowed,  to  run,  169. 
Stenographer  of  one  of  the  attorneys  cannot  take  deposition,  89. 
Steps  to  be  followed  in  becoming  notary,  43. 
Steps  in  Protest,  noting  and  protest  proper,  234. 

Stockholder,  notary  who  is,  may  take  acknowledgment  of  mortgage 
given  to   corporation,  40. 

cannot  be  notary  in  some  states,  9. 
Street  Number  of  applicant   for  appointment   as  notary  should   be 

given  in  the  bond,  45. 
Subpoena    may  be  issued  for  witness  to  give  his  deposition,  191. 

fee  must  be  paid  when,  is  served,  193. 

if  served  by  person  not  an  officer  affidavit  of  service   must  be 
attached,   193. 

may  be  served  by  whom,  how,  193,  194. 


362  INDEX. 

[References  are  to  Pages.] 

Subpoena,  must  not  be  served  on  Sunday,  193,  195. 
may  be  served  by  telegraph,  193,  195. 

may  demand  the  production  of  books  and  papers,  194,  195. 
issued  by  whom,  when,  193. 
See  "Duces  Tecum." 
Subpoena  Duces  Tecum,  in  Bolster  case  held  witness  must  produce 

books,  etc.,  before  notary,  85. 
"Substantially,"  forms  of  certificates  set  out  in  the  statutes  to  be 

followed,  156. 
Sunday,   validity  of  an  acknowledgment  taken  on,  153. 
when  last  day  falls  on,  rule,  287. 

See    "Presentment    for    Acceptance";    "Presentment    for    Pay- 
ment." 
Superior  Court  will  compel  witnesses  to   attend   and  testify  before 

notary  in  deposition,  85. 
Supra  Protest,  refusal  of  payment,  eflFect  of,  284. 

See  "Payment  for  Honor";  "Acceptance  for  Honor." 
Surety  of  notary  liable  when  notary  is  liable  for  negligence  or  mal- 
feasance, 169. 
liable  on  bond  if  notary  breaks  conditions,  93. 
when,  liable  on  notary's  bond — who  may  maintain  action,  93. 
held  on  his  bond  for  same  length  of  time  notary  is  held  for  his 

action,   95. 
cannot  be  compelled  to  pay  more  than  one  thousand  dollars,  94. 
action  against,  may  be  in  name  of  one  injured,  94. 
Surety  Company  may  go  on  notary's  bond,  51. 
Surname,  what  is  a,  132. 
"Sworn  to"  must  appear  in  jurat,  136. 

Taxes,    notary    may    take    affidavit    in    matters    connected    with,    on 

legacies,  79. 
Telegraph,  power  of  attorney  may  be  sent  by,  for  record,  170. 

subpoena  may  be  served  by,  195. 

checks,  due-bills,  promissory  notes,  bills  of  exchange,  etc.,  may 
be  drawn  by,  290. 

effect  of  instruments  drawn  by,  290. 

meaning  of  "copy"  or  "duplicate,"  291. 

any  instrument  of  writing  may  be  sent  by,  291. 

how  seal  is  described  by,  291. 

how  revenue  stamp  is  described  by,  291. 
Telephone,  notary  cannot  administer  oath  over,  113. 
Term  of  office  of  notary  public,  47. 
Testimony  of  mineral  land  proofs  may  be  taken  before  notary,  76. 

of  witness  to  be  signed,  71. 
Timber  and  Stone  Acts.    See  "Land  Office." 
Timber  Culture.    See  "Land  Office," 
Time,  acknowledgment  of  deed  or  instrument  should  be  taken,  153. 

deposition  should  be  taken  at  the  time  specified  in  the  notice 
on  commission,  199. 

presentment  should  be  made,  227. 

protest  must  be  made,  233. 

marine  protest  should  be  made,  76. 

within  which  criminal  actions  may  be  begun  against  notary,  100. 


INDEX.  363 

[References  are  to  Pages.] 

Title  of  afBdavit  placed  where,  125. 

of  aflSdavit  not  absolutely  demanded  when,  125. 

should  be  exact  copy  of  title  of  case,  125. 

should  not  be  used  in  affidavit  if  suit  has  not  been  begun,  126. 
Trademarks,  notary  may  take  affidavit  and  acknowledgments  in  con- 
nection with,  77. 
Trade  Name,  signer  of,  liable  individually,  258. 

Undertaking  of  maker,  estoppel,  265. 

of  drawer,  estoppel,  265. 

of  acceptor,  estoppel,  265. 
Unequivocsil  acknowledgment  must  be,  155. 
United  States,  notary  public  in,  8. 

general  powers  of  notary,  10. 
United  States  CJourts,  practice  in,  72. 
"Unmarried,"  word  should  not  be  used  in  deeds,  165. 
Unqualified  statement  of  that  not  known  to  person  to  be  true  is  equiv- 
alent to  false  statement,  120. 
Unsound  Mind,  person  of,  cannot  be  sworn,  114. 

Validating  Laws  passed   from  time  to   time,  list  of,  from  1866  to 

1903,  172. 
Validity  of  acts  of  notaries  de  facto,  106. 
Value,  what  constitutes,  259. 
Venue,  form  of  venue  for  certificate  of  acknowledgment,  166. 

means  what,  127. 

essential  in  earlier  times,  stringent  rule  changed,  127. 

purpose  of  the,  128. 

should  be  used,  128. 

of  affidavit  consists  of  what,  127. 

of  marine  protest,  64. 

of  certificate  of  notary  to  marine  protest,  64. 

of  affidavit  to  be  used  in  courts' of  England.  59. 

of  power  of  attorney  to  be  used  in  a  foreign  country,  61. 

of  marine  note  of  protest,  64. 

early  spelling,  127. 

history  of,  127. 
Vermont  Sulo  as  to   taking  depositions  in  Washington  for  use  in 
Vermont,  83. 

Waiver  of  protest,  includes  what,  238,  273. 

War,  prevalence  of,  would  excuse  delay  in  notice  of  dishonor,  246. 

Warehouse  Receipts  cannot  be  protested,  289. 

Warranties  by  negotiator,  266. 

by  indorser,  266. 
West  Point  Cadets,  notary  may  administer  oath  to,  73. 
"Widow,"  manner  the  word  should  be  used,  166. 
"Widower,"  manner  the  word  should  be  used,  166. 
Wife,  both  husband  and,  must  execute  and  acknowledge  homestead 
deed,  170. 


364  INDEX. 

[References  are  to  Pages.l 

Wife,  agreement  of,  with  husband  as  to  property  must  be  acknowl- 
edged, 169. 
conveyance  of,  to  husband  must  be  acknowledged,  169. 
must   join   in  execution   and   acknowledgment   of   all   community 

property,  169. 
power  of  attorney  to  husband  must  be  acknowledged,  170. 
"Wife  of  Eichard  Eoe,"  when  expression  used,  165. 
Will,  in  Scotland  parish  clergyman  may  still  execute,  6. 

attestation  of  witness  to  will  may  be  taken  by  deposition  when, 

188. 
purpose  of  chapter  on,  307. 
who  may  make,  307. 
who  may  take  by  will,  307. 
what  may  be  disposed  of  by,  307. 
devises,  legacies  and  gifts  to  witnesses  void,  308. 
how  will  is  made,  308. 
form  of  will,  308. 
Witness,  in  Bolster  case  court  held,  could  be  compelled  to  attend  and 

to  produce  books,  85. 
to  be  cautioned  and  sworn  when  deposition  de  bene  esse  is  taken, 

71. 
error  in  name  of,  cured  how,  184. 
may   be   compelled   to   testify  when   deposition   de   bene   esse   is 

taken,  71. 
may  be  subpoenaed  to  testify  in  land  office  depositions  from  office 

of  register  or  receiver  or  by  notary  from  his  office,  74. 
two  witnesses  needed  to  notary's  bond,  49. 
may  be  compelled  to  testify  under  letters  rogatory,  72. 
depositions  of,  may  be  taken  in  manner  prescribed  in  state  law, 

72. 
may  be  compelled  to  attend  and  testify  before  notary  appointed 

to  take  deposition,  85. 
how,  to  be  sworn  who  has  peculiar  mode  of  swearing.  111. 
may  be  sworn  in  two  ways.  111. 
deposition  of,  not  party  to  suit  may  be  taken,  180. 
compelling  attendance  of,  discussed,  179. 
testimony  of,  must  be  material  and  necessary  in  order  to  take  his 

deposition,  178. 
attestation  of,  to  will  may  be  taken  by  deposition  when,  188. 
name  of,  must  be  in  notice  to  take  deposition  without  commission, 

184. 
is  subpoenaed  under  statute  "by  commission"  the  same  as  under 

statute  "on  notice,"  183. 
cannot  be  disqualified  by  reason  of  religious  belief,  110. 
must  believe  in  God,  110. 

may  be  subpoenaed  to  give  testimony  where  procedure  in  com- 
pelling, to  attend,  191. 
must  produce  documents  if  properly  called  for,  191. 
name  must  be  set  forth  in  notice  when  deposition  is  taken  under 

§  1233,  Rem.  &  Bal.  Code,  190. 
must  be  offered  fee  when  subpoena  is  served,  193. 
may  be  compelled  to  appear  where,  194,  195. 
refusal  to  attend  and  procedure,  196. 

if,  cannot  be  served  personally  may  be  served  by  publication,  196. 
question  as  to  whether  notary  may  compel,  to  attend  discussed, 

196. 


INDEX.  365 

[Befersnces  are  to  Pages.] 
Witness,  procedure  if  witness  refuses  to  attend,  196. 
how  testimony  of,  is  taken  in  a  deposition,  199. 
liability  of,  for  not  attending  on  the  taking  of  a  deposition,  199. 
how  subpoena  must  be  served,  196. 
how  order  of  court  must  be  served,  196. 

if,  refuses  to  obey  order  of  court  he  is  guilty  of  contempt,  196. 
"Without  Recourse,"  meaning  of,  261. 

Women,  privy   examination   of  wife  in  taking  her   acknowledgment, 
origin  of  doctrine  that  taking  acknowledgment  is  a  judicial 
Act,  41. 
may  be  appointed  notaries,  41,  42. 

question  whether  law  as  to  appointment  of  women  was  constitu- 
tional, 42. 
ineligible  to  office  of  notary  under  Ohio  constitution:  Ohio  law  in- 

valid,  42. 
woman's  name  upon  marriage,  133. 
Words  which  must  be  on  seal,  52. 

in  legal  instruments  should  be  written  out  in  full,  133. 
Writing,  in  taking  depositions  de  bene  esse,  testimony  of  witness  to 
be  reduced  to,  how,  71. 
deed  must  be  in,  148. 
will  must  be  in,  308. 


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